Saturday, April 21, 2007

[The Virginia Tech killer] had two guns: a Glock 9mm and a Walther P22. Both are semi-automatic: they fire bullets as quickly as you can keep pulling the trigger.

Actually, the other dominant form of handgun -- a double-action revolver -- also fires bullets as quickly as you can keep pulling the trigger. The rate of fire from a revolver is, I'm told, slightly less than from a semiautomatic (I take it because in a revolver the trigger pull needs to do more than in a semiautomatic), but only slightly. One can certainly fire a revolver at least once a second with no extra training; it's not a good idea, since one generally won't be accurate with a revolver when firing rapidly, but one generally won't be accurate with a semiautomatic when firing rapidly, either.

Certainly for someone who is shooting at unarmed targets, and thus doesn't have to shoot several times a second -- and apparently the Virginia Tech killer was shooting at a relatively leisurely pace -- the difference between revolver rate of fire and semi-automatic rate of fire is negligible. (The difference in time to reload might be more significant in some situations, though again not in this one.)

Why does this matter? One common argument made by some gun control proponents, expressly or implicitly, is that they're just proposing modest restrictions on just a few guns. After all, it's politically easier to ban something that fewer people own than something that more people own. We're not trying to ban all guns, just so-called "assault weapons." We're not trying to ban all guns, just semiautomatics. We're not trying to ban all guns, just large-capacity magazines. And in the process of making such proposals, they have to explain why this particular kind of gun or magazine is especially deadly.

The trouble is that "assault weapons" aren't really materially deadlier than unbanned non-assault-weapons. Semiautomatic handguns aren't really materially faster-firing than revolvers. Bans on over-10-round magazines will almost never limit criminals, especially the sort of mass killers whom the gun control advocates are discussing. The proposals will do virtually nothing to reduce crime; while I agree that they're not nearly as burdensome to law-abiding citizens as total gun bans would be, they also aren't burdensome to criminals. These modest proposals will fail. And what will gun control advocates propose then?

(More aggressive bans, such as total handgun bans or total gun bans, might actually have more of an effect, both for good and for ill. I think on balance the ill effects will exceed the good ones, but that's a separate matter; at least there's something more than pure symbolism or misunderstanding behind them.)

Illinois Representative Rahm Emanuel, chairman of the House Democratic Caucus, said the top priority of his party's lawmakers is hiring more police to fight crime, not tougher gun control.

Emanuel said the House "might" or "might not" re-enact an assault-weapons ban that expired in 2004. That legislation, which limited the capacity of handgun magazines, would have reduced the amount of ammunition used in a shooting rampage that killed 32 people this week at Virginia Tech University.

Setting aside the various other questions raised by assault-weapons bans, how can a news service say with a straight face that legislation limiting the capacity of handgun magazines would have reduced the amount of ammunition used by the murderer?

Recall that semiautomatic handguns are reloaded by popping out a magazine, popping in a new magazine, and chambering another round. If the shooter has preloaded several magazines — which the Virginia Tech murdered had — the process can take a second or two, even with no special training.

Banning 15-round magazines (which the Virginia Tech killer apparently had) and limiting magazines to 10 rounds — as per the expired assault weapons ban — or even to 6 rounds, would thus simply require the shooter to reload a little more often. This may limit a shooter who is in the middle of a firefight when one is shooting very quickly (6 to 10 rounds in a few seconds), but not a shooter engaged in a mass shooting such as this one, which took place over many minutes. It doesn't seem even very plausible that a smaller magazine size would have led to fewer shots being fired. It is certainly wrong to say that it would have reduced the number of shots (even if one recognizes that "would have" represents very high probability rather than just certainty).

This is a classic policy analysis mistake, but one that I've found particularly common in gun control debates: assuming that when one enacts a law, that will change the subjects' behavior in the way the law contemplates, but with no compensating substitution effects. Sure, if by reducing magazine size, we get someone to load 4 10-round magazines rather than 4 15-round magazines, he'll have fewer rounds he could readily shoot.

But why on earth would we think that this is how people will react? Why wouldn't they just load 6 10-round magazines instead of 4 15-round magazines? (Another classic policy analysis mistake is simply not knowing the technical details of the items that one is discussing; my sense is that many people, likely including many reporters, just don't know how quickly one can switch magazines on a semiautomatic, or don't even know precisely what a semiautomatic is.)

I should say that banning semiautomatics altogether, and requiring handgun users to rely on revolvers, might theoretically have more of an effect; reloading a revolver does take somewhat more time. It's not vastly more, and if one has a backup gun handy, one won't even be particularly vulnerable while reloading the revolver; and there are other problems with the proposal, including the political problem that the ban would affect weapons that are owned by tens of millions of gun owners.

But at least there'd be something potentially plausible to talk about there. There is, on the other hand, no credible defense for the claim that "[the] assault-weapons ban that expired in 2004 ..., which limited the capacity of handgun magazines, would have reduced the amount of ammunition used in a shooting rampage that killed 32 people this week at Virginia Tech University."

UPDATE: In the original post, I described the process of replacing a magazine as removing the empty one, loading a full one, and then possibly chambering the round, unless one reloads while there is still a round ready to shoot. On reflection, I realize that one would almost always wait until all the rounds have been used before putting in the new magazine, so I changed the post to say that replacing the magazine requires removing, loading, and chambering. The bottom line is unaffected; reloading can still take a second or two, without any fancy training.

As VC readers probably know, I authored one of the contributions to the volume. The volume was edited by Kinvin Wroth and includes essays by Mark Latham, Stephen M. Johnson, Kim Diana Connolly, and Royal C. Gardner. Unsurprisingly, the other contributors offer more critical commentary on Rapanos than I do.

The negative reviews of Attorney General Alberto Gonzales' Senate Testimony are pouring in, even from those who might be expected to defend the Bush Administration. For example, here is the opening of Byron York's coverage on National Review Online:

Judging by his testimony before the Senate Judiciary Committee Thursday, there are three questions about the U.S. attorneys mess that Attorney General Alberto Gonzales wants answered: What did I know? When did I know it? And why did I fire those U.S. attorneys?

As the day dragged on, it became clear — painfully clear to anyone who supports Gonzales — that the attorney general didn’t know the answers. Much of the time, he explained, he didn’t really know much at all — he was just doing what his senior staff recommended he do.

Gonzales said he would resign when he concluded he could no longer be effective in his position. Is there any doubt he passed this point already? Senator Tom Coburn also asked an important question at the hearing: "Why should you not be judged by the same standards by which you judged these dismissed U.S. attorneys." It appears Gonzales did not have much of answer, prompting this response from Coburn:

I would just say, Mr. Attorney General, it’s my considered opinion that the exact same standards should be applied to you in how this was handled. And it was handled incompetently. The communication was atrocious. It was inconsistent. It’s generous to say that there were misstatements. That’s a generous statement. And I believe you ought to suffer the consequences that these others have suffered. And I believe that the best way to put this behind us is your resignation.

In the wake of Monday's massacre at Virginia Tech in which a student killed 32 people, Dean of Student Affairs Betty Trachtenberg has limited the use of stage weapons in theatrical productions.

Students involved in this weekend's production of "Red Noses" said they first learned of the new rules on Thursday morning, the same day the show was slated to open. They were subsequently forced to alter many of the scenes by swapping more realistic-looking stage swords for wooden ones, a change that many students said was neither a necessary nor a useful response to the tragedy at Virginia Tech....

Brandon Berger '10, who plays a swordsman in the show, said the switch to an obviously fake wooden sword has changed the nature of his part from an "evil, errant knight to a petulant child." ...

Do Yale students have a hard time telling theater from reality? Are they so emotionally fragile that they would be traumatized by seeing a realistic sword on stage?

Is the administration contemplating some weird scenario in which a cunning and patient mad killer-actor decides to kill people by substituting a real sword for the fake one (and would be stopped by this rule from bringing a real sword, or a real gun, in a bag)? Is it afraid that one of the actors will run off-stage waving a fake sword, and lead the police to shoot him for fear that it's a real sword? Or am I missing some other, less far-fetched, justification?

Friday, April 20, 2007

Many thanks to Orin for pointing to this opinion; I just read it, and it's pretty shocking how aggressive the prosecution's theory was:

In 2005 Wisconsin selected
Adelman Travel Group as its travel agent for about 40% of
its annual travel budget of $75 million. The selection came
after an elaborate process presided over by Georgia
Thompson, a section chief in the state’s Bureau of Procurement.
Statutes and regulations require procurement
decisions to be made on the basis of cost and service rather
than politics. Wis. Stat. §§ 16.70-16.78; Wis. Admin. Code
§10.08. Thompson steered the contract to Adelman Travel,
the low bidder, even though other members of the selection
group rated its rivals more highly. A jury convicted
Thompson of violating 18 U.S.C. §666 and §1341. The
prosecution’s theory was that any politically motivated
departure from state administrative rules is a federal
crime, when either the mails or federal funds are involved.
Thompson was sentenced to 18 months’ imprisonment
and compelled to begin serving that term while her appeal
was pending. After concluding that Thompson is
innocent, we reversed her conviction so that she could be
released. This opinion is the explanation that our order of
April 5 promised.

Adelman Travel was the low bidder, but a low price for
lousy service is no bargain. Wisconsin’s rules give price
only a 25% weight (300 of 1200 points) in the selection
process. About 58% (700 points) goes to service, which a
working group evaluates subjectively based on written
presentations. Adelman had the second-best score for
service; Omega World Travel came in third. The combined
price-and-service rating had Adelman in the lead. (Fox
World Travel received the best service score but had a
noncompetitive price.) The final 17% of the score (200
points) depends on the working group’s assessment of oral
presentations. These presentations (often dubbed “beauty
contests” or “dog-and-pony shows” that may reward the
flashiest PowerPoint slides) need not be related to either
price or the pitchman’s probable quality of service; why
the state gives them any weight, independent of price or
quality, is a mystery, but not one we need unravel.
Adelman Travel must have made a bad presentation, for
six of the seven members of the working group gave it poor
marks (from a low of 120 points to a high of 165), while
awarding Omega scores between 155 and 200. Thompson
alone gave Adelman a higher score (185 for Adelman, 160
for Omega). Adelman Travel’s disastrous oral presentation
left Omega World Travel with the highest total score.

The prosecution’s theory is that Omega should have
received the contract on the spot but that for political
colleagues that a decision for Omega, which is based on the
East Coast, would not go over well with her boss, Pat
Farley. A jury also could conclude that Thompson said
something to the effect that for “political reasons” Adelman
Travel had to get this contract. (Witnesses related different
versions of what Thompson said, but in each account
“politics” or “political” played some role.)

Thompson tried to engage in logrolling, offering to
change her scores for bidders on other travel contracts if
members of the working group would change their scores
on this contract. Horse-trading proved to be unacceptable
to the selection group, but a member other than Thompson
suggested that the contract be rebid on a best-and-final
basis, as state law permitted. Wis. Stat. §16.72(2m)(e), (g).
Adelman Travel reduced its price, which — keeping all
other elements of the score constant — left Adelman and
Omega with 1027 points apiece. The tie depended on
rounding to the nearest whole number. Adelman Travel’s
score was 1026.6, while Omega World Travel’s score was
1027.3. After Thompson (with her supervisors’ consent)
deemed the contest a draw — sensibly, as the difference was
trivial compared to the amount of subjectivity and variance
in the committee members’ evaluations — Thompson
employed a tie-breaking procedure, specified by state law,
that gave weight to items not previously figured into
the price comparison and declared Adelman Travel to be
the winner.

The prosecutor contends that this episode played a role
in the Bureau of Procurement’s decision three months
later to give Thompson a $1,000 raise in her annual salary.
Post hoc ergo propter hoc is the name of a logical error, not
a reason to infer causation. But Thompson does not
contend that the evidence was insufficient to allow the
jury to find that the raise was related to the travel contract,
so we shall assume that this link has been established.

The court goes on to conclude that Thompson's actions simply aren't federal crimes. Even if Thompson violated state rules, she did so at most to satisfy her superiors and perhaps get a raise as a result — and the vague language of the statute shouldn't be read to make that commonplace behavior into a crime. "The United States has not cited, and we have not found,
any appellate decision holding that an increase in official
salary, or a psychic benefit such as basking in a superior’s
approbation (and thinking one’s job more secure), is the
sort of 'private gain' that makes an act criminal under
[the relevant federal statutes].

I realize that sometimes appellate decisions don't fully explain one side of the case, even when the judges are entirely well-intentioned. Still, I suspect the facts presented at trial were pretty much what Judge Easterbrook — not a notoriously pro-defendant judge by any means — describes; and if that's so, then the prosecution seems to have been singularly ill-founded.

Many law reviews hold their write-on competitions at the start of the summer after the first year of law school. A few tips on what you (or your friends who are finishing up their first year) can do now to prepare, borrowed from my Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers and Getting on Law Review:

1. Many law reviews grade you in part on your knowledge of proper citation style. (Some have a separate citation formatting, proofreading, cite-checking, and editing test; many check the accuracy of your footnotes in your write-on paper.) Ask your law review which citation style manual it uses, and whether it has any supplemental instructions explaining how its style deviates from the standard manual. Read the citation style manual several times. Make it your bathroom, bus, or exercise bike reading.

Mark (with post-its, for example) those items in the citation manual you found most surprising, and that you think you’ll most need to be reminded of during the competition. By reading and marking the manual, you'll (a) get a good sense of the rules; (b) understand the general logic behind the rules (not all the rules are explicable using a general logical principle, but some are); and (c) see enough citation examples that you might more easily notice when something departs from the citation rules. Pay particularly close attention to the rules related to (1) cases, (2) statutes and constitutions, (3) articles, (4) books, (5) short forms, and (6) citation signals.

3. Read a good general writing manual, such as Strunk & White’s The Elements of Style, at least once.

4. See whether past competitions are available. Read them, just to get a feel for what’s going on. If some model answers are available, pay particularly close attention to them.

5. If the past competitions include practice editing and proofreading tests, do as many of the practice tests as you can; compare your results against the answer keys, if those are given. If there are no answer keys, compare your answers against those of some friends of yours who are also doing the practice competitions. (You can’t work together with people on the actual competition, but there’s no problem with cooperating on practice projects.)

6. Go over any comments that you’ve gotten on your past written work, such as the papers in your first year legal writing course. Most writers make the same mistakes repeatedly. Figure out what your weaknesses are, so you can avoid them while doing the write-on.

Your writing instructor will likely be happy to help you with this. Writing teachers like it when you come to them out of a sincere desire to improve your writing; and they often have specific advice that they’ll be glad to pass along.

7. Plan ahead to make sure you have no other obligations during your write-on competition. If you’ll be working, even part-time, see if you can take the week off, and make up the lost time before or after. If you have children, do what you can to get the other parent or someone else to spend more time with them during the competition.

Try to avoid leaving town to see friends or family, even if it is your one week of vacation before you start your summer job. You might intend to do lots of work when you’re on the trip, but it’s hard to work when you’re around people you haven’t seen in months, and who understandably want your company. Going out to dinner with friends is fine; everyone needs a study break. But try to avoid more demanding commitments.

The writing competition requires you to do something that’s new to you, under considerable psychological pressure, in a limited time. You’ll want to finish your draft as early as possible, so you can edit it as many times as you can. You really might need most of your waking hours to do this. Even if you’ve found that the first year of law school hasn’t been as time-consuming as you were initially told, this week will be quite a burden.

If, however, you can’t get out of your other obligations for the week, don’t use that as an excuse to just sit out the competition. It’s possible for you to do well even if you also have to travel, work, study, or mind the kids that week — it’s just easier if you can focus solely on the competition.

Let me also mention that I still have copies of the Academic Legal Writing book — which covers doing the write-on competitions, writing your student Note, writing seminar papers that you might do even if you don't make law review, and more — that I'll be happy to personalize for you or friends of yours.

Matt Carlson: "Your Academic Legal Writing book is excellent — I read it before trying out for law review recently and found it to be extremely helpful. I am happy to say that I made the law review as a 1st year staff member, and will definitely continue to use your book in writing my articles this summer."

Jason Watson: "I was just writing to let you know how helpful your book on academic writing has been. I'm a 1L at Valparaiso Law and we have our case comment assignment approaching, as well as Law Review tryouts after finals. My writing teacher ... recommended your book and, being a dedicated fan of the website, I picked it right up. It's been a great resource, I wish I'd had it while writing my Appellate Brief. I hope I'm the only one here at Valpo to get it, I NEED an edge to get on Law Review!" Update some months later: "I made Law Review. I'm sure your book played a big part. I wrote on, too, which I'm strangely proud of. I'm in the top third of my class but my grades didn't get me the spot."

The book should be available from Legal Books Distributing or from amazon. For the Third Edition, the publisher is no longer sending me author's copies for signing and resale; but if you'd like me to send you a free personalized bookplate (basically just a label) to be pasted inside the book, just e-mail me at volokh@law.ucla.edu and tell me (1) the name and address to which you want the bookplate sent, and (2) the inscription you'd like me to use.

Georgia Thompson Decision:
The Seventh Circuit has published its decision in United States v. Thompson, the public corruption case that the Seventh Circuit reversed from the bench on April 5. Judge Easterbrook's opinion for the court is here, and it includes a pretty interesting discussion of the dangers of reading vague statutes in an overly broad way. Thanks to Victor Steinbok for the link.

In response to my post about how the European Union is requiring states to criminalize (among other things) "condoning, denying or grossly trivialising crimes of genocide ... when [the speech] is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group," a commenter writes:

I'm not a fan of such laws because of free speech concerns and I think they do more to encourage hate speech (making it forbidden attracts the very people you want to discourage) however to be fair you won't get jailed or arrested for doing serious scholarship.

Several years ago, prominent historian Bernard Lewis was sued in France for his comments (made in a Le Monde interview) on the Turkish killing of Armenians during World War I; he stressed that the killing happened, but argued that -- unlike with the Holocaust during World War II -- it was not part of a deliberate campaign of extermination by the Turks. Various plaintiffs, including the French Forum of Armenian Associations and the International League Against Racism and Antisemitism sued, claiming that his speech violated French prohibitions on the historical denial of genocide; and they won.

The invaluable research librarians at UCLA Law School have gotten me an English translation of a French court's decision, and it is as troubling as press accounts described it to be. (Note that I'm not yet sure of the source of the translation, but I found it on a site that appears to be harshly critical of Bernard Lewis, so I doubt that the translation is incorrectly Lewis-friendly.)

Though the court didn't find that Lewis made any false statements, it concluded that Lewis didn't give a balanced presentation (and this in a necessarily brief newspaper interview, not an academic work) -- under this standard, even the most responsible historians could be vulnerable, especially if they are tried before courts that are hostile to their viewpoints. And though Lewis lost only 14,000 Francs, I suspect that the potential damages for future cases would be considerably greater. Here's what seems to me to be the court's key language, though you should just read the entire decision (it's not long and not very legalese) yourselves:

Whereas, even if it is in no way established that he pursued an objective foreign to his role as historian, and even if it is not disputable that he may maintain an opinion on this question different from those of the petitioning associations, the fact remains that it was by concealing information contrary to his thesis that the defendant was able to assert that there was no "serious proof" of the Armenian genocide; consequently, he failed in his duties of objectivity and prudence by offering unqualified opinions on such a sensitive subject; and his remarks, which could unfairly rekindle the pain of the Armenian community, are tortious and justify compensation under the terms set forth hereafter.

(Note again that the Lewis statement about the lack of serious proof of the genocide referred to the supposed "lack of serious proof ... of a decision and plan of the Ottoman government for extermination of the Armenian nation"; Lewis acknowledged "that the Armenians' suffering [was] a terrible human tragedy," and that many Armenians died as a result of the deportation.)

Say that a European country enacts the core EU proposal (especially without the modifications that the proposal would tolerate though not encourage). Say that a historian -- especially one who lacks Bernard Lewis's prominence -- likewise says that the mass killing of Armenians wasn't "part of a deliberate campaign of extermination by the Turks," which I'm sure some will say "grossly trivialis[es] crimes of genocide." And say that he says this in a way that condemns some Armenians who say the contrary (perhaps claiming that they're deliberately distorting the facts in support of their view), so that it is "likely ... to incite ... hatred against ... a member of such a group [i.e., ethnic Armenians]."

Would we say "to be fair [this historian] won't get jailed or arrested for doing serious scholarship"? (Recall that the EU proposal expressly calls for "effective, proportionate, and dissuasive criminal penalties," specifically with a statutory "maximum of at least 1 to 3 years of imprisonment.") Or is it that sharing Lewis's views, coupled with condemning some who you think are distorting the facts, is per se not "serious scholarship"?

1. Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: ...

(c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;

(d) publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group....

1b. For the purpose of paragraph 1, the reference to religion is intended to cover, at least, conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin.

So if you're writing about whites' relations with American Indians', or the Crusades, or the reconquest of Spain from the Moors, or for that matter about any aspect of history that involves ethnic-based slaughter — think how much of that there has been in history — you might be violating the law. True, this would be covered only if your actions are "carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group." Is that really great comfort, though? If a tribunal concludes that your actions were likely to incite hatred against the defeated group, or even a member of the group, you're a criminal.

The enactment does give states the latitude to limit this:

1a. For the purpose of paragraph 1 Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting....

2. Any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement that it will make denying or grossly trivialising the crimes referred to in paragraph 1(c) and/or (d) punishable only if the crimes referred to in these paragraphs have been established by a final decision of a national court of this Member State and/or an international court or by a final decision of an international court only.

Thank you very much; states may choose not to suppress discussion of history quite as much as the EU suggests. For instance, until a court "establishe[s]" the Official View Of The Crusades, you're free to write history about them; only after the court establishes the True Historical Account would any attempt to question the new legally announced historical orthodoxy become a crime.

Oh, and here are the penalties:

Each Member State shall take the necessary measures to ensure that the conduct ... is punishable by effective, proportionate and dissuasive criminal penalties....

Each Member State shall take the necessary measures to ensure that the conduct ... is punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment.

But of course there's no danger of restricting free speech: "This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, including freedom of expression and association, as enshrined in Article 6 of the Treaty establishing the European Union.... This Framework Decision shall not have the effect of requiring Member States to take measures in contradiction to [...] fundamental principles relating to freedom of association and freedom of expression, in particular freedom of the press and the freedom of expression in other media as they result from [...] constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability." Well, OK, then.

Leader of the Democratic majority in the US Congress, Harry Reid, has said the US has lost the Iraq war, and Bush's troop surge has failed.... Reid's comments came a day after 200 fatalities were reported in bombings in Iraq, despite a much touted US Security Plan which the White House said sought to root out insurgency."

A Republican party e-mail also reported the following as translations of items from Al-Jazeera Online, and Al-Sharq Al-Awsat, "The Leading Arabic International Daily"; please let me know if the translations are inaccurate:

"Yesterday the leader of the Democratic majority in Congress, Harry Reid, announced that he conveyed to Bush that the United States lost the war in Iraq and that the additional America forces that were sent there will not succeed in the achievement of any positive progress."

"Leader of the Democratic majority in the US Congress, Harry Reid, has said the US has lost the Iraq war, and Bush's troop surge has failed.... Reid's comments came a day after 200 fatalities were reported in bombings in Iraq, despite a much touted US Security Plan which the White House said sought to root out insurgency."

As I have said before, it may well be quite proper -- and certainly constitutionally protected -- for people to criticize the war; and sometimes the benefits of such criticism, even of the "war is lost" variety and even when said by leading U.S. politicians, outweigh the costs. Yet it seems to me hard to doubt that this statement will have grave cost.

If Napoleon was right that "In war the moral [meaning 'morale'] is to the material as three to one," then it seems to me that Reid's statements may prove highly objectively costly, chiefly by strengthening the enemy's morale as well as by weaking our own soldiers'. Likewise if Churchill was right that even statements that "weaken confidence in the Government" and "make the Army distrust the backing it is getting from the civil power" may prove to be "to the distress of all our friends and to the delight of all our foes" (Speech in the House of Commons (July 2, 1942)). How much more distress and delight must be caused by statements that represent that the Congressional majority actually believes the war to be lost.

Maybe, as I said, the benefit of the statements exceeds their harm. And maybe the harm will be modest, because everyone -- among our enemies as well as among our military -- has already assumed that the Democratic leadership thinks this. Yet my suspicion is that the harm will be quite substantial indeed.

It looks like a UCLA Police Department officer, who happens to have a law degree, is going to be teaching a class here at the law school on Legal Issues in Policing. He's already on campus for his normal patrols, so he'll just pop by for an hour in the middle of his day a couple of days a week. Should be pretty educational for our students.

* * *

What did you think when you read that item? (I should note it's a thought experiment, and not a real story, though in principle such a thing would be quite possible.) You might have thought about the teacher's credentials, or the merits of the class, or even about the social divides between police officers and academics. But I strongly suspect you didn't think the following: "Wait, is he going to be lecturing with his gun on his person? Won't this interfere with class dynamics? Plus, isn't it true that 'Schools and guns do not mix. Period.'?"

Now it is possible that having a uniformed police officer teach a class may interfere with class dynamics. There may well be some social divides between police officers and lawyers and law students, even if the police officer is known to have a J.D. Some radically antiauthoritarian students might be put off by having a police officer in class (though in my experience law students are generally not that antiauthoritarian). Some students might have the habit of being on their guard around police officers, because in the past they've generally seen police officers while doing something that might get them in some (usually minor) legal trouble — driving, engaging in underage drinking, littering gum, or what have you. Some students who are deeply swayed by authority might be extra bashful in class.

But none of this, I think, would stem from the officer's even visibly wearing a handgun. If the officer were to become a familiar face, and wear street clothes rather than a uniform, I think these factors would largely go away. But even if these factors remained, it would be they, not the officer's likely possession of a handgun (even if he carries it openly, but especially if he carries it concealed), that throw off class discussions.

Yet why then does Prof. Ralph Luker (History News Network) write, "Some absurd reactions to the Virginia Tech murders: ... Some solutions to campus terrorism: Eugene Volokh says "Arm the teachers!" Aeon J. Skoble says "Arm the students!" [EV: I bracket the arming the students question for reasons I note here.] Both great ideas for improving classroom dynamics. Do you understand why I prefer to read Chris Bray, Tim Burke, and Nathanael Robinson?"

If a police officer acting as an adjunct professor can teach a class while armed without throwing off "classroom dynamics," why wouldn't a full-time professor be able to do the same? Is it that somehow police officers are so much more trustworthy than ordinary professors? Would students think of a normal professor, "if I say something I dislike, the teacher will take a shot at me," given that I doubt they'd think this of police officers?

I'm sure there are some unstable professors, but there are also some unstable police officers; there is a risk of mental trouble, alcoholism, and the like in any profession. But I know of zero evidence that for those professors who are likely to seek and get concealed carry permits, the risk of misbehavior is materially greater than for police officers. Nor do I think that students would perceive such a risk; sure, we like to talk about "those crazy professors," but I doubt that students really would be worried enough about the risk that "classroom dynamics" would be thrown off.

Nor do I see students worrying about the professor more than the police officer in the classroom because they expect that the professor isn't as well-trained at gun use. Setting aside the crazy teacher — whether professor or police officer — the professor's training would only come into play only in the very unlikely scenario of a madman's started shooting into the classroom. I doubt students would much focus on that scenario, and, if they did, I'd hope that they'd prefer to have an armed good guy in the classroom, even if he isn't optimally trained.

So what is it about the possible presence of a magical mystical handgun on a professor's person that would ruin classroom dynamics? Conversely, what is it about the police officer's magical mystical police officer status that would prevent classroom dynamics from being ruined?

There is, I think, no such magical force. An armed professor — whether full-time professor, on-duty police officer, on-duty FBI or BATF agent, on-duty soldier [UPDATE: e.g., military police officer, or soldier who is required to remain armed, as in Israel], on-duty secret service agent, or whoever else — can teach just as well (or as poorly) as an unarmed professor. The students will worry about all the things that throw off classroom dynamics today (what if I embarrass myself in front of classmates? what if I look like too much of an eager beaver? what if the professor disagrees with my politics and embarrasses me? lord, I drank too much last night), and not at all about the professor's being armed.

Why Alberto Gonzales Should Resign:
I only had a chance to watch parts of Alberto Gonzales' testimony yesterday. But from what I saw, and all the news reports I read, it seems to me that it's in the country's best interests for Gonzales to resign.

In my view, the issue is not whether Gonzales misspoke during a press conference, or whether he bungled this particular news story. All in all, that's pretty small beans. The real issue is whether Gonzales understands and can fulfill the proper role of an Attorney General of the United States. The U.S. Attorney story and Gonzales's testimony gave us a window into that question. And from what I've seen, it doesn't leave me with any confidence that Gonzales has what it takes to be AG.

In particular, the hearings left the strong impression that Gonzales isn't the strong and independent decisionmaker that the Justice Department needs. It's one thing to be out of the loop on some personnel matters; it's another to not even be particularly interested in the functioning of your own department. What struck me the most about Gonzales's testimony is that it didn't seem like he really cared about who the U.S. Attorneys are. If I recall correctly, Gonzales didn't even ask about what criteria were being used to determine who should stay and who should go. That's pretty remarkable to me: U.S. Attorneys are critical players in the federal law enforcement system. I would think that any Attorney General would at the very least be keenly interested in knowing who was being booted out and why.

I don't know if the U.S. Attorney purge story will actually play out into something truly scandalous. There's some smoke, but it's hard to tell if there's any fire. Perhaps the U.S. Attorneys were fired for partisan political reasons, or perhaps this was just a chaotic and random decision. Or perhaps some mixture of the two. But the fallout from the story has given us a new perspective on Attorney General Gonzales's role within DOJ. And the picture it suggests is that Gonzales isn't the right person for the job.

The Supreme Court’s 2005 decision in Kelo v. City of New London generated a massive political backlash. Kelo endorsed the condemnation of private property for transfer to other private owners in order to promote “economic development. . .” Polls show that 80 to 95 percent of Americans oppose the decision, including overwhelming majorities of Democrats, Republicans, women, men, and members of every major racial group. Many observers, such as Judge Richard Posner, predicted that the political response to Kelo would be so strong that it could obviate the need for judicial protection of property rights. Some states have made real progress. But the Kelo backlash hasn’t been nearly as effective as many expected.

Senator Reid opposes abortion except in the cases of rape, incest, and when the life of a mother is at risk. Consistent with this position, Senator Reid supported the Partial Birth Abortion Ban and supports the Supreme Court’s decision yesterday. However, Senator Reid continues to disagree with Chief Justice Roberts and Justice Alito on many issues and that is why he opposed their confirmation.

I was corresponding with a friend of mine -- a very smart fellow, and a lawyer and a journalist -- about concealed carry for university professors. He disagreed with my view, and as best I can tell in general was skeptical about laws allowing concealed carry in public. His argument, though, struck me as particularly noteworthy, especially since I've heard it in gun control debates before:

Forgive me, but I'm old-fashioned. I like the idea of the state having a monopoly on the use of force.

I want to claim that this echo of Weber (who said "Today ... we have to say that a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory") is utterly inapt in gun control debates, at least such debates in a Western country.

To begin with, note that, read literally, my friend's proposal is not "old-fashioned." It's not new-fashioned. It has never been the fashion in any jurisdiction in America.

1. Every jurisdiction in America has always recognized individuals' right to use not just force but deadly force in defending life. To my knowledge, every Western democracy does the same (though with some differences about the permissible occasions for and extent of such use of deadly force, and of course with differences about what deadly weapons people are entitled to possess). It may well be that virtually every state in the world does the same, at least in many situations, though I can't speak confidently about that.

2. Every jurisdiction in America except D.C. has also always recognized individuals' right to possess loaded guns at home for self-defense, and, generally speaking, defense of others, which I will include under the label of self-defense below. But even D.C., which bans (I use the present tense because the mandate in the D.C. Circuit's Second Amendment decision has not yet issued) possession of handguns and possession of loaded or unlocked rifles and shotguns, allows people to use other deadly weapons, and likely even to load the long guns when needed for imminent self-defense.

3. Use of deadly force for self-defense has always been allowed in public places as well as in private places. Even in the about 12 states (and until recently the count was indeed higher) that do not let virtual all law-abiding adults get licensed to carry guns in public, the use of other forms of deadly force is perfectly legal, nearly anywhere.

4. Throughout America, many non-state organizations even maintain private armed staff -- armed security guards, whether used to protect a business's property on its land, to protect property off the business's land (consider armed guards on armored trucks), or to patrol residential areas on behalf of the residents. I'm sure that most other Western countries allow some degree of such armed protection (with the arms including firearms) by private security guards, though the number of such private guards may vary considerably from country to country.

So whatever the meaning of Weber's statement might be, it does not mean only a state may physical force, or even lethal force -- nor would such a policy be sound or morally acceptable (since it would require a prohibition on all private self-defense using lethal force of any sort). It might mean that the private use of force is allowed only to the extent it's permitted by the state (in Weber's words, "the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it[; t]he state is considered the sole source of the 'right' to use violence"). This may be a controversial moral proposition but which could at least be consistent with the reality I describe above, and with the moral imperative of allowing self-defense. It might also be read as meaning that only the state may generally use retaliatory force, which is to say force aimed at after-the-fact retaliation (whether for retribution, deterrence, incapacitation, or whatever else) when the imminent need for self-defense has passed.

But the "monopoly on the use of force" statement is not relevant to self-defense, either if we're trying to describe current or "old-fashioned" law, or even if we're trying to set up a new rule (unless we are willing to abolish forcible self-defense, which I'm sure even my correspondent would not call for). The question at the heart of concealed carry debates is not whether private individuals should be able to use force in some situations; of course they should. It's not even whether private individuals should be able to have guns for self-defense, except insofar as some people would totally ban all privately owned guns, in the home and outside it. It's whether private individuals should be able to defend themselves using especially effective weapons outside the home, or just using powerful weapons within the home and less effective weapons outside the home (or, even if for those who would ban all guns, using only less effective weapons either in or out of the home).

Nor can my friend's argument be rescued on the grounds that he was simply speaking somewhat inexactly, and omitted a word or two of qualification (or omitted mention of some special cases that are not raised by our discussion about concealed carry). You can add "deadly" before "force" ("the state having a monopoly on the use of [deadly] force"), and the result would still have never been the fashion and would still be deeply morally unappealing when applied to private self-defense. You can say "force using firearms," and the result would still have never been the fashion within the U.S. And of course you can't say "but of course I was making a general statement, and self-defense and defense of others are different matters," because what I was discussing was precisely arming people for self-defense and defense of their friends, acquaintances, coworkers, and students.

I stress again that I'm not trying to disagree with Weber here; I'm not a Weber expert, but it may well be that his position may be sound for some of the reasons I described, reasons that keep the position from excluding forcible self-defense. My point is simply that this Weber quote is of no relevance to the question of private gun possession for self-defense.

JCG on Gonzales v. Carhart:
Over at the Legalities blog, Jan Crawford Greenburg has a very interesting post on Gonzales v. Carhart that begins:

It's sometimes too easy to mock Anthony Kennedy, and people sure have done a lot of it over the years. He can seem infuriatingly unmoored. He agonizes over his decisions. He’s been known to change his mind in a case or two. And his writing style is about as grand as his ornately decorated chambers in the Court. But in yesterday’s landmark abortion case, Kennedy was the Associate Justice he believes himself to be. "If I say something," Kennedy told me in the summer of 2006, "I want to stick with it." I'd asked Kennedy how he thought he and Sandra Day O'Connor were different. He seemed frustrated by her approach to the law, and he suggested she was simply more willing to walk away from positions she’d taken in previous cases. "I think I may adhere somewhat more closely to whatever standard I come up with," Kennedy said. It seemed obvious during our talk that Kennedy had a case in mind: Stenberg v. Carhart, the Court’s decision in 2000 that struck down state laws banning partial birth abortion.

Thursday, April 19, 2007

I was just looking over the transcript of an interview I did with my late grandmother a couple of decades ago, and at some point my grandfather interjected

Grandpa: You want to know who my doctor was when my sisters were born? Armand Hammer. David: Really? Grandpa: He was the local doctor at that time in the Bronx and he was a socialist [as was my grandfather and great-grandfather].

According to Wikipedia, "Hammer was born in Manhattan, New York and attended Columbia College and then medical school at Columbia University as a young man; he received his medical license in 1924 and, though he never practiced medicine, he relished being referred to as 'Dr. Hammer.'"

Well, either Wikipedia is wrong, or my grandfather was wrong. I'm guessing the former; when I was a boy, I'd sit with my grandfather and watch the (old version of) Jeopardy and he'd amaze me by getting just about every answer right, leading me to constantly beg him to go on the show. (To which he always responded with an old-Jewish mannish, "Eh, what do I need that for?")

School Shootings, Gun Control, and Public Opinion:
Over at Concurring Opinions, my colleage Don Braman has a post that begins:

We've all been flooded with information about the horrible shootings at Virginia Tech. Perhaps you've heard from friends or politically minded bloggers about what this means about guns and gun control. As part of a team of researchers that studies the way people process information about firearms and their regulation, I can tell you that this is a natural way to react to tragedy. But if you look at public opinion following each major school shooting over the last twenty years, can you guess which way the shootings have driven public opinion on gun control? Neither way. That's right, each school shooting has had exactly no effect on public opinion regarding gun control.

A colleague asks: "[I'm] wondering if hollow point bullets are legal and if so, what is the rationale given by gun fanciers for that rule? I know under the international law of war they are not legal in combat, but I take it the same isn’t clear in domestic law."

Many of our readers doubtless know more details than I do, but I think I can summarize the answer fairly well.

The bullets are indeed legal for civilian and police use. Wikipedia puts well the two reasons why many people prefer them, "Despite the ban on military use, hollow point bullets are one of the most common types of civilian and police ammunition, due largely to the reduced risk of bystanders being hit by over-penetrating or ricocheted bullets, and the increased speed of incapacitation."

To unpack this: (1) Because hollow-points deform on impact, they're unlikely to go through or off walls (or through the target and into the person behind him).

(2) If you're trying to defend yourself against attack, your goal isn't just to hit the person, but knock him down. Even a fatal wound might leave the attacker mobile enough long enough for him to kill you (either with his own gun, or with some other weapon if he doesn't have a gun). A hit with a hollow-point is much likelier to knock him down. It is also likelier to kill him, but that's a side effect, not the goal; the goal is for him to stop going at you.

We are, in fact, going to switch to hollow-point ammunition as soon as we receive it. They are much safer than fully jacketed bullets, which will go through a person or tumble through a person's organs and then continue on and hit innocent victims.... It is the standard around the world in law enforcement to use hollow points.

The story also notes that "Other police officials have pushed for the bullets because they are more effective in stopping dangerous criminals, and they say that aspect further protects bystanders because officers have to fire fewer shots to incapacitate their targets." Likewise, "'[The hollow-point bullet] increases the wound's capacity to the victim, but it reduces a risk that the police are always concerned about: the risk of the bullet perforating the intended target and injuring a bystander,' said Dr. Stephen Hargarten, the director of the Firearm Injury Center in Milwaukee, Wis."

A Well Regulated Militia:
In light of the discussion between Eugene and Orin, I though I would link to an essay I wrote for National Review Online on September 18th, 2001, Saved by the Militia: Arming an army against terrorism. After noting that it was the members of the general militia that prevented United Flight 93 from reaching its intended target on 9/11, the essay continues (with emphasis in bold I am adding now):

Ask yourself every time you hear a proposal for increased "security": Would have in any way have averted the disaster that actually happened? Will it avert a future suicide attack on the public by other new and different means? Any realistic response to what happened and is likely to happen in the future must acknowledge that, when the next moment of truth arrives in whatever form, calling 911 will not work. Training our youth to be helpless in the face of an attack, avoiding violence at all costs will not work. There will always be foreign and domestic wolves to prey on the sheep we raise. And the next attack is unlikely to take the same form as the ones we just experienced. We must adopt measures that promise some relief in circumstances we cannot now imagine.

Here is the cold hard fact of the matter that will be evaded and denied but which must never be forgotten in these discussions: Often — whether on an airplane, subway, cruise ship, or in a high school — only self defense by the "unorganized militia" will be available when domestic or foreign terrorists chose their next moment of murder. And here is the public-policy implication of this fact: It would be better if the militia were more prepared to act when it is needed.

If the general militia is now "unorganized" and neutered — if it is not well-regulated — whose fault is it? Article I of the Constitution gives Congress full power "to provide for organizing, arming, and disciplining the Militia." The Second Amendment was included in the Bill of Rights in large part because many feared that Congress would neglect the militia (as it has) and, since Congress could not be forced by any constitutional provision to preserve the militia, the only practical means of ensuring its continued existed was to protect the right of individual militia members to keep and bear their own private arms. Nevertheless, it remains the responsibility of Congress to see to it that the general militia is "well-regulated."

And states too, I should now add. The existence of this enumerated power means that Congress can act to organize the militia if it so chooses.

But is it ludicrous to describe those who brought down United 93 as belonging to the militia? As I noted in the essay, Section 311 of US Code Title 10, entitled, "Militia: composition and classes" in its entirety (with emphases added) defines the militia as follows:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are —

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

But there is no reason why the general militia must remain unorganized. I also observed,

A well-regulated militia does not require a draft or any compulsory training. Nor, as Alexander Hamilton recognized, need training be universal. "To attempt such a thing which would abridge the mass of labor and industry to so considerable extent, would be unwise," he wrote in Federalist 29, "and the experiment, if made, could not succeed, because it would not long be endured." But Congress has the constitutional power to create training programs in effective self-defense including training in small arms — marksmanship, tactics, and gun safety — for any American citizen who volunteers. Any guess how many millions would take weapons training at government expense or even for a modest fee if generally offered?

Maybe it's time (again) to think "outside the box" — or more accurately inside the box provided by the Constitution.

Apropos my post below, could I re-ask the question, in search of fairly narrowly focused answers? The student will be going to an LL.M. program; I was wondering which of the options -- NYU, Virginia, and possibly George Washington -- is likely to most increase the student's chances of getting a clerkship and a teaching job. If you have some sense of the programs (or at least one of the programs), or of the clerkship and teaching market, I'd much appreciate some helpful advice on this.

Here is the full earlier post: A former student who is considering NYU's, Virginia's, and possibly GW's LL.M. program asks -- which schools are likely to do better at helping their LL.M. graduates get a judicial clerkship, and (ultimately) a law teaching job? (These are the general LL.M. programs, and not specialty LL.M.s, such as those in tax law, international law, or the like.)

Naturally, much depends on the student's credentials, performance in the program, and writing during and after the program; and much also depends on the student's interest. But which program is likely to help the student more, by providing the better education, the better credential, or the better placement help?

I'd love to know your answers to this, both for this student's sake and for the sake of other students who might have a similar question in the future.

In order to reflect the hierarchy of faculty, there would have to be stratification:
Assistant Professors get muzzle-loaders
Associate Professors get semi-automatics
Full Professors get automatics
Adjuncts get a sharp letter-opener
Chaired Professors are irrelevant, since they never come to campus

UPDATE: Commenter The Hobbesian Father (Greg for short) follows up:

I'm sympathetic to the plan, but I can't see how it would possibly work unless the changes to campus policy allowed grad students to shoot the bad guys for the professors.

I appreciate Orin's response to my post. If university police officers were indeed always or generally available within "even seconds," we'd have less need for others to be armed. But I don't share his perception of campuses being "crawling with officers from campus police departments"; it doubtless varies from campus to campus, but I almost never see UCLA police officers right around the law school. Perhaps they can come within "even seconds," or at least "minutes," but I rarely see them physically at the law school, whereas there are almost sure to be other university employees much closer.

This does raise the question, though, of what happened at Virginia Tech. Can anyone speak to how long it took for the police to be called, how long it took for them to arrive, and how quickly did they go in after the shooter when they arrived? (I should note that Virginia Tech is a large campus, much larger than UCLA, which I believe is in turn somewhat larger than George Washington University, where Orin teaches.)

Armed Professors and Mass Killings:Eugene suggests that we should allow professors to carry guns on campus to reduce the carnage in the event of an armed "mad killer" who comes to campus and tries to kill as many people as he can. If professors are armed, Eugene reasons, perhaps the professor can shoot the "mad killer" after he has killed only a few people. That way, fewer people will die.

This strikes me as a really really bad idea for a lot of different reasons. Eugene suggests one obvious objection to this proposal: Such killings are so extraordinarily rare that it's unwise to craft wideranging social policy in response to them. But let me offer another reason why it's a bad idea. On most college campuses, campus police officers already perform the role Eugene would want professors to perform.

In my experience, at least, most college campuses are crawling with officers from campus police departments. Campus police officers already carry guns, and they are trained in how to use them. On most campuses they respond to campus incidents anywhere on campus in minutes or even seconds. And unlike professors, they're around on nights and weekends. Given that, it seems that the perceived benefit of having armed professors is something we already have, more professionally and completely, with the current system of armed police officers.

UPDATE: Thanks for the helpful comments. If my experience is different from others, that is good to know; we always face the problem of trying to generalize from our experience, so I'm certainly open to hearing other views on this. At the same time, it seems that a lot of commenters have an unrealistic sense of how many professors would actually chose to arm, and how much a difference it would make. I suspect that very very few professors would actually decide to carry guns on their person if they were allowed to do so. Further, the specific facts of Virginia Tech or Columbine aren't the issue; the issue, as framed by Eugene, is what might reduce the carnage in a future attack -- not what might have done so in the past.

A former student who is considering NYU's, Virginia's, and possibly GW's LL.M. program asks -- which schools are likely to do better at helping their LL.M. graduates get a judicial clerkship, and (ultimately) a law teaching job? (These are the general LL.M. programs, and not specialty LL.M.s, such as those in tax law, international law, or the like.)

Naturally, much depends on the student's credentials, performance in the program, and writing during and after the program; and much also depends on the student's interest. But which program is likely to help the student more, by providing the better education, the better credential, or the better placement help?

I'd love to know your answers to this, both for this student's sake and for the sake of other students who might have a similar question in the future.

Could NBC News be held liable for distributing Cho’s multi-media manifesto because it inspired copycats? Cho made reference in his manifesto to the Columbine murderers. If a subsequent mass murderer copies elements of Cho’s manifesto in his own actions, could a parent successfully bring a wrongful death action against NBC News for distributing the manifesto that incited the subsequent murderer? Does it matter that Cho sent the manifesto to NBC News precisely so that it would distribute it and so to speak inspire others?

Lower courts have dealt with quite a few lawsuits over crimes that seem to have been stimulated by broadcasts; all the courts have rejected the liability claims, some based on general tort law principles and some based on the First Amendment. The courts have taken the view that speakers could generally be punished for the crimes that the speech they communicate inspires only if they fit within the "incitement" exception — if their speech was intended to and likely to cause imminent illegal action. The murderer's manifesto is unlikely cause imminent illegal action (courts do take the imminence requirement seriously), and in any event NBC surely did not intend for it to have such an effect (courts rightly require evidence of the broadcaster's purpose to stimulate illegal action, and not just recklessness or negligence about such action).

The suits have generally been based on copycats inspired by fiction, not by criminals' manifestos, but that shouldn't change the results. The First Amendment value of the manifestos — providing a possible perspective on the criminal's personality — is at least the same as the First Amendment value of fiction. It may well be that as a matter of journalistic ethics, the media shouldn't have broadcast the manifesto because its value in providing the perspective is too modest given the risk that it poses; but the First Amendment value does exist, and given that value, the courts have held that media can't be held liable for copycat crimes.

The reader goes on to ask,

Would the government have a right to suppress a broadcast of the Cho manifesto, in whole or in part, if it seemed highly probable that it would inspire copycats? It seems to me that the government would have to show that copycats arise in most widely-reported cases, and that information/images found only in the manifesto — rather than something else — is what would inspire a copycat.

I don't think the government may accomplish this through legislation (even under the somewhat more relaxed standards applicable to over-the-air broadcasters) any more than through the tort system. Speech generally can't be restricted on the grounds that it persuades people to act violently, unless it fits within the narrow incitement intent-likelihood-imminence framework I mentioned above.

Some could argue that the Court should essentially carve out a new First Amendment exception under the so-called "strict scrutiny" test, which in theory lets the government ban even speech that has First Amendment value, and that doesn't fit within any of the existing exceptions, if the ban is "narrowly tailored" to a "compelling government interest." But this scrutiny of content-based speech restrictions has been, to adapt Gerald Gunther's words, "strict in theory [but] fatal in fact" in virtually all instances, and I think that's good, or else the doctrine would justify restricting a very wide range of speech. It seems to me that, whatever the harm of broadcasting such manifestos, the harm of allowing the government to suppress dangerous speech — despite the perspective that the speech might provide on a tremendously important issue (how we can deal with violent madmen) — is even greater.

1. An armed madman comes to a place and starts shooting people. None of the people who's around is armed.

2. An armed madman comes to a place and starts shooting people. Several (say, five) people in the vicinity are armed.

Which madman is more likely to be stopped quicker — the one who outguns everyone else 1-0, or the one who is outgunned 5-1?

If this weren't a madman but Jack Bauer — or even an average highly trained soldier — the five may well be unable to stop the one. But otherwise, the odds would seem to be more against the madman in situation 2 rather than 1, no?

No-one can prove anything, of course. Maybe the five would be the first to be shot. Maybe they'd run away. Maybe they wouldn't be around. Maybe they'd shoot and miss. Still, if you had to bet, which would you bet would be the worse scenario for the madman, and the better one for his victims?

Now of course if arming the five people for the extremely rare situation when they'll need to stop a madman will end up causing more harm than good in the much more common situations when there's no madman around, that might be a bad tradeoff. That is the argument I've heard against letting students possess weapons on-campus: They're young, they drink a lot, they'll start shooting when they get into a hot argument in class or at a debate. I'm not sure that's right, but let's say it is.

What, though, is the argument against allowing professors and other university staff to possess weapons, if they choose? (Assume the professors lack criminal records, and assume they go through whatever testing and modest training is required to get a concealed carry permit, or perhaps even some extra training.) One argument is that it's just dangerous for law-abiding citizens to have weapons, because they'll start shooting over arguments or fender-benders. But that's precisely the argument that has been rejected by the 38 states that allow any law-abiding citizen to get a concealed carry license (or, in 2 of the 38 states, to carry without a license). What's more, as I understand it, people who get such licenses have in fact almost never committed unjustified homicide or attempted homicide (or even lesser crimes) using their guns. Whatever the pluses or minuses of shall-issue, the "licenseholders will start shootouts over petty slights" theory has not been borne out.

If Virginia and other states have found that it's safe to let law-abiding citizens carry guns on streets, in shopping districts, in parks, and the like, why wouldn't it be equally safe to let law-abiding professors and staff to carry guns in the university? What magic is there about a university that makes guns in law-abiding citizens' hands (again, let's even set aside college students, if we think they are unusually likely to behave foolishly) more dangerous at a university than elsewhere? I know there are some university professors who are, er, a bit odd. But wouldn't the average professor — or average university employee generally — who wants a concealed-carry license to carry on campus be at least as responsible as the average citizen who wants a concealed carry license to carry outside campus? Given that licensees don't start shootouts over fender-benders, and that gun store employees, police officers eating lunch, and other law-abiding people who are routinely armed don't start shootouts over arguments, why should we think that armed professors (to be precise, that small group of professors who chooses to get concealed carry licensees) would start shootouts at faculty meetings?

What then is the downside? One possibility is that if mad killers know that professors and staff may be armed but students won't be, the killers will shoot the professors first. It's hard to see why this would increase the total death toll, though, especially in cases such as this one. I doubt that the typical mad killer who's willing to shoot any university employees he comes across just in case they have guns would have spared them, and just shot a selected subset of unarmed students (and staff and faculty), if he assumed the employees were unarmed. And in any event, it seems to me that this modest risk is worth running, just as the risk that armed security guards would be shot first is worth running in order to provide the protection that armed security guards might offer.

Another possibility is that the mad killers would just start shooting lots of people very quickly, rather than at the relatively leisurely pace that we've seen in many mass killings. "I was going to walk around killing people over 15 minutes or half an hour," the killer might think (Kleck's Targeting Guns reports two mass killings that happened over 2-4 minutes, but seven that happened over 10 minutes or longer, including five that took 30 minutes or longer) — "but since there's now a substantial chance that I'll be stopped, I'll just shoot as many as I can as quickly as I can." But this strikes me as pretty unlikely; the pace of killings seems to be driven more by the killer's own mad desires rather than by a calculation such as this one.

Another concern might be that the universities would be held liable for their employees' misuse of guns. But, first, I take it universities already have liability insurance policies for possible misuse of weapons by university police officers. The employees who get concealed-carry permits (likely a small fraction of all employees, given that in shall-issue states the general pattern is that only a small fraction of all citizens get licenses to carry) could be added to such policies.

Given the pattern of safe use of guns by shall-issue licensees, I suspect insurance companies won't demand vastly higher premiums from universities for this. And the university could require some extra screening, testing, and training just to make sure that employees who get permits are as reliable as possible. Recall that many armed security guards are trained and screened only modestly, and they are likely to use their weapons more often (since they tend to guard places during high-crime times of day, and are more likely to be called over to the scene of developing crimes, which other armed university employees would rarely have to do). And if one thinks my analysis above is correct, and carrying by employees is pretty safe, but the liability system is unlikely to reflect this sound analysis, then some statutory liability limit — perhaps simply providing that professors and staff are armed on their own behalf, and the university thus wouldn't be liable for their actions — may be sensible.

I've also heard some arguments that suggest universities are different because they are places for reasoning, not violence: They should be gun-free zones (except of course for university police officers and security guards, who for some reason don't count) because that's needed to create the proper climate of peaceful inquiry. But the sad fact is that you can't make a university into a gun-free zone. Mad killers can bring guns, and use them, regardless of what policies you announce. The question is whether they will be able to use them against a disarmed population, or against a partly armed population. Allowing people the tools to defend themselves against the mad killers does not, it seems to me, worsen the climate.

[UPDATE: Finally, to give an even more essentialist version of the argument that universities are somehow unsuitable places for professors to be armed, let me quote a commenter: "There are a million reasons, but one will suffice for now. Schools and guns do not mix. Period. The more guns we inject into a school environment the worse it is for all involved...." It's hard to figure out how to deal with the argument that "Schools [including universities] and guns do not mix. Period." The commenter also mentions that professors "aren't trained for it, and I doubt they would be very good at it," but 38 states have taken the view that all law-abiding adults should be free to get a license to carry concealed weapons, and haven't had serious problems from the concealed-carry holders; the question is why those problems would suddenly appear at universities.]

* * *

Again, I should stress that this is not supposed to be a panacea, some guarantee that mad university killers will be immediately stopped. And I should say, as I've noted before, that there may be little point in planning for fortunately very rare events such as this one, which account for a tiny fraction of all homicides in the country. (The yearly average is that mass killings account for less than 0.1% of all U.S. homicides.)

But if we are trying to think what could have decreased the carnage, I've come around to the tentative view that allowing at least university employees to be armed is the likeliest solution. When one person — a not very well-trained person — comes into a place occupied by thousands of people, and kills over thirty, there's a simple explanation for why he could get away with it: Though he was outnumbered, they were outgunned.

If all university professors (and other employees) could be armed, and therefore some would be armed (again, I'm not saying that everyone will be armed, much less will be required to be armed, but only that some will exercise their right to get a concealed carry license allowing carry on campus), he would be both outnumbered and outgunned. Why wouldn't there be a very good chance that they would therefore be able to stop him earlier than he would have stopped otherwise?

As I have noted in numerous prior posts (see, e.g. here), the U.S. Court of Appeals for the Sixth Circuit appears to be quite divided over how to evaluate habeas petitions, particularly those filed in capital cases. As a general rule, the more “liberal” judges on the court appear far more sympathetic to habeas claims, particularly those claiming ineffective assistance of counsel, than the more “conservative” judges. This is well known among criminal defense attorneys within the Sixth Circuit; one capital defense attorney I know routinely handicaps his clients’ chances on appeal based upon the composition of the panel.

On Sunday, the Cincinnati Enquirer reported on the results of its analysis of judicial voting behavior in death penalty cases on the Sixth Circuit. Unsurprisingly, the report found that judges appointed by Democratic presidents are far more likely to rule in favor of capital defendants than are judges appointed by Republican Presidents. What is notable, however, is the extent of the gulf.

Judges appointed by Republican presidents voted to deny inmate appeals 85 percent of the time.
Judges appointed by Democrats voted to grant at least some portion of those appeals 75 percent of the time.

Republican appointees dissented from majority opinions 25 times, always arguing against the inmate. Democratic appointees dissented 29 times, all but once arguing for the inmate.

The Enquirer analysis also looked at the voting patterns of judges appointed by specific Presidents.

Appointees of President George H. W. Bush posted the most lopsided track record, voting 50-4 against granting inmate appeals. President George W. Bush's appointees voted 34-5 against granting appeals.

By contrast, President Carter's appointees voted 31-4 in favor of inmate appeals.

At one end of the spectrum are conservatives such as Alice Batchelder, Eugene Siler, Deborah Cook, Jeffrey Sutton, John Rogers and Danny Boggs. Together, they voted 92-9 against inmate appeals.

On the other side are liberals such as Gilbert Merritt, Eric Clay, Karen Nelson Moore and Boyce Martin. Their combined votes totaled 65-9 in favor of inmate appeals.

The only judges who did not vote one way or the other 60 percent of the time or more are Ronald Lee Gilman and Martha Craig Daughtrey. The two Clinton appointees voted for inmate appeals about half the time.

It would be easy to ascribe the disparity to ends-oriented jurisprudence by judges on the court. At least one Sixth Circuit judge has made clear that the death penalty is “beyond repair” and should be scrapped. Yet there are also meaningful jurisprudential differences between the more conservative and more liberal judges that should be considered before anyone makes the accusation that specific judges are acting in bad faith.

Liberal judges tend to give more weight to problems such as poor work by defense lawyers, misconduct by prosecutors and errors by judges. They also are more likely to conclude those problems are prejudicial, or serious enough to invalidate a death sentence.

Conservatives focus more on procedural issues, such as whether the appeal is properly filed. They also are more deferential to the original jury verdict and sentence, even when mistakes are made during the trial.

What does all this mean? Well, as a practical matter it means that the odds a capital defendant’s habeas petition will be successful are dependent upon the luck of the draw in panel assignment. As University of Pittsburgh law professor Arthur Hellman observes, “It looks very much like a lottery. . . . Literally, if someone lives or dies depends on the panel they get.”

Some argue that this disparity shows that the death penalty, at least as administered within the Sixth Circuit, is so inherently arbitrary as to be inherently unjust, if not unconstitutional. While I am sympathetic to the justice argument, I think the constitutional claim faces tough sledding. First, there are many features of the criminal justice system that inevitably result in differing verdicts in equivalent cases. The most obvious is the jury system, and the substantial discretion of individual juries to make individual determinations. As the Supreme Court noted in McClesky v. Kemp, a certain degree of arbitrariness is one cost of placing such emphasis on the jury right and the inevitable amount of discretion that juries are provided.

Second, the nature of appellate review also entails a certain amount of subjective judgment and discretion on the part of appellate judges. The existence of three-judge panels reduces the subjective element of appellate decisions, but it cannot eliminate it, particularly in those subject areas in which the reigning legal standards are insufficiently clear.

Third, the level of dissension in death penalty cases on the Sixth Circuit may well be a temporary phenomenon as more cases are decided, and particularly as more cases receive en banc or Supreme Court review. Although I’m hardly a habeas expert, I do get the sense that there is a decent amount of wiggle room under current precedents that should narrow over time. Circuit court judges are bound by their own prior decisions and Supreme Court precedent, so if one assumes that most if not all judges are acting in good faith, these sorts of divisions should not persist. So, for instance, as the court hears more cases alleging ineffective assistance of counsel, it should become easier to predict the outcome of such claims based on the facts of the case, and comparisons with prior decisions, rather than on the composition of the panel. On the other hand, some would suggest that the Sixth Circuit’s case law in this area is already riddled with inconsistencies.

Finally, I would note that there would be something a bit odd were it possible that disagreement over the proper application of the death penalty on a court could itself be the source of sufficient arbitrariness to raise constitutional concerns. If nothing else, this would create the opportunity for strategic behavior on the part of death penalty opponents on the court. By voting to overturn death penalty convictions in specific cases they could introduce sufficient arbitrariness in the system to render the death penalty itself arbitrary within the Circuit.. I am not accusing any judges on the Sixth Circuit of engaging in such behavior. Nonetheless I would find a legal doctrine odd that would allow for that result.

The Enquirer story is not entirely clear on how its methodology, but the disparities it finds are large enough that I doubt an alternative approach would have yielded much different results. A colleague and I have discussed conducting an analysis of our own, so perhaps we’ll see. In any event, it is an interesting analysis that provides much food for thought.

Jurors, like sporting event spectators, look to pick, and then root, for a side. When jurors have no allegiance to either side, many rely on the story behind the parties to motivate them to commit to a "team." An effective story should incorporate simple arguments that appeal to jurors' common sense. In today's courtrooms, when attorneys simply argue a products liability case using the law or mounds of complicated scientific evidence, they unwisely increase the risk of defeat.

Get it? Don't count on relying on the law or the facts, unless you are able to conjure up a "good story" that appeals to common sense and the jury's need to "root for a team." Lefevre goes on to discuss ways that jury decisionmaking tends to conflict with basic principles of our legal system (e.g., juries rely on a defendant's general reputation to assess blame in a particular case, juries award larger damages against big corporations). Some of my thoughts on civil juries, and why they should be abolished or at least restricted, can be found here.

[SEE UPDATE BELOW] Senate Majority Leader Harry Reid (D-NV) was among those who denounced yesterday's Supreme Court ruling upholding the Federal Partial Birth Abortion Act. Commenting on the decision, Reid said "A lot of us wish that Alito weren't there and O'Connor were there," indicating his desire that there has been a fifth vote to invalidate the statute, as Justice O'Connor had provided the fifth vote to invalidate Nebraska's partial-birth abortion ban in Stenberg v. Carhart.

What is curious about Reid's statement, as NPR and some news outlets have noted, is not Reid's criticism of Alito — Reid opposed Alito's confirmation — but the fact that Reid supported, and voted for, the federal statute upheld in yesterday's decision. Reid was one of 17 Senate Democrats voting in favor of the billin 2003. Reid also voted in favor of a ban on partial-birth abortion in 1999 (see here) and , as indicated in this "Meet the Press" interview, Reid was one of only two Democratic Senators to vote against a resolution reaffirming Senate support for the holding of Roe v. Wade.

So, despite his repeated support of legislative restrictions on abortion, Reid's latest comment suggests that he believes the Supreme Court's decision was regrettable and wrongly decided, and that a law that he supported is unconstitutional. To me, the latter is of greater concern. Call me old fashioned, but I believe that if a member of the Senate believes a law is unconstitutional, he or she should vote against it. While I believe it is permissible to vote in favor of a bill that one believes the Supreme Court will invalidate (a Senator need not agree with the rulings of the Supreme Court), I do not believe that a Senator should vote in favor of a bill the he or she believes should be struck down by the Supreme Court, and it is more than a minor inconsistency when a Senator laments a Supreme Court decision upholding a law which that Senator supported. Note that I don't think Senator Reid can argue that he likes the law as a matter of policy, but believes it to be unconstitutional as a) he is sill obligated to vote against any bill that he believes to be unconstitutional, and b) his refusal to vote in support of Roe indicates that he disagrees with the Supreme Court's decisions holding most abortion restrictions unconstitutional.

Alas, Senator Reid is hardly alone in this regard. It has become almost routine for legislators of both parties to disclaim any serious evaluation of the constitutionality of their enactments and await court evaluation of their efforts. This is regrettable. Particularly if members of Congress desire or expect some degree of judicial deference to legislative enactments, they should take their oaths to uphold the constitution more seriously, and refuse to support given legislation when they conclude, based upon the exercise fo their own independent judgment, that a bill is unconstitutional. So, if that is how Senator Reid felt about the federal partial birth abortion act, he should have voted against it.

UPDATE: A spokesperson from Senator Reid's office released a statement that makes clear Reid misspoke [or was misinterpreted] when he commented on the Supreme Court's ruling.

Senator Reid opposes abortion except in the cases of rape, incest, and when the life of a mother is at risk. Consistent with this position, Senator Reid supported the Partial Birth Abortion Ban and supports the Supreme Court’s decision yesterday. However, Senator Reid continues to disagree with Chief Justice Roberts and Justice Alito on many issues and that is why he opposed their confirmation.

Based upon this clarification of his statement, it does not indicate that he voted for a law that he believed to be unconstitutional.

How Many Justices Would Support a Commerce Clause Challenge to the Federal Partial Birth Abortion Ban?

Justice Clarence Thomas, joined by Justice Scalia, wrote an interesting concurrence in yesterday's partial birth abortion case, indicating that he might be sympathetic to a Commerce Clause challenge to the federal partial birth abortion ban that was just upheld by the Court. At the oral argument, liberal justices Ruth Bader Ginsburg and John Paul Stevens also suggested that they believe that at least some applications of the statute exceed Congress' enumerated powers under the Commerce Clause. I discuss their concerns in more detail here and here.

Assuming for the sake of argument that these four justices would all support a Commerce Clause challenge to the statute, could they pick up a fifth vote? It is difficult to know for sure, but the answer may well be yes. As I explained at the time of his nomination, Justice Alito had a strong record of support for limits on federal power as a court of appeals judge, and he might well continue in that vein on the Supreme Court. It is also possible, though far less likely, that Justice Souter or Justice Breyer (who wrote the Supreme Court's earlier partial birth abortion decision, Stenberg v. Carhart), would place their commitment to abortion rights ahead of their commitment to virtually unlimited federal power.

All of this is of course highly conjectural. Predicting justices' votes on the basis of remarks in oral arguments is a chancy business. Ditto with predictions based on opaque concurring opinions. Only in the case of Justice Thomas am I close to certain about what his vote will be. The other four are considerably more difficult to predict. Moreover, whether or not a Commerce Clause challenge to the partial birth abortion ban succeeds will depend in part on the specific facts of the case. A case addressing a partial birth abortion in a nonprofit clinic involving a woman who did not cross state lines, would be more likely to succeed than one with a commercial clinic or an interstate transaction.

Nonetheless, there is at least some significant chance that a cross-ideological coalition of justices would be willing to support a federalism-based challenge to the congressional partial birth abortion ban. If it does come to pass, it will be hugely important as the first Commerce Clause case in decades where federal power was constrained by a coalition of liberal and conservative justices rather than by a narrow 5-4 majority consisting of the five most conservative members of the Court. In my view (see here for details), judicial enforcement of limits on federal power cannot survive in the long run if it remains a parochial concern of conservatives and libertarians. Just as with judicial enforcement of free speech, freedom of religion, and other constitutional constraints on government power, it requires a broader cross-ideological consensus in order to succeed.

One Benefit of Laptops in Law School Classes:
As told in a guest post at Balkinization by Michael Stokes Paulsen:

I was, quite literally, teaching *Stenberg* v. Carhart (following on the heels of Monday's class on Roe v. Wade and Tuesday's on Planned Parenthood v. Casey), when a student broke in with the comment that the Court had decided today's partial-birth abortion case, upholding the federal statute. (Ah, the joys of internet access in the classroom.) Seamlessly weaving the student's interjection into the class decision, I asked him about the holding: "Who wrote?" (No one needed to ask the vote or the lineup.) "Kennedy?! Makes sense. Was Stenberg overruled? Could he do that, consistent with his opinion in Casey?"

As you might expect, there's lots of interesting blogging about Carhart at Balkinization; just keep scrolling.

Wednesday, April 18, 2007

Like Ilya, I will be presenting a paper this weekend at the Florida State University conference on "Takings: The Uses and Abuses of Eminent Domain and Land Use Regulation." Whereas Ilya will be focusing on eminent domain, I will be focusing on regulatory takings, specifically questioning whether environmental values are served by denying landowners compensation for the costs of environmental land-use controls that deny them the productive use of their land. My paper is titled "Money or Nothing: The Adverse Environmental Consequences of Uncomepnsated Regulatory Takings." I have not yet posted it on SSRN (or elsewhere) because there are still a few rough patches I'd like to fix, but I've reproduced the working version of the abstract below:

The conventional wisdom holds that requiring compensation for environmental land-use controls would severely limit environmental protection efforts. Yet there are reasons to question this assumption. Economic theory and empirical research both demonstrate that failing to compensate private landowners for the costs of environmental regulations discourages voluntary conservation efforts and can encourage the destruction of environmental resources. At the same time, failing to require compensation means that land-use regulation is “underpriced” as compared to other environmental protection measures for which government agencies must pay. This results in the “overconsumption” of land-use regulations relative to other environmental protection measures that could be more cost-effective at advancing conservation goals than uncompensated land-use regulations. While any specific compensation proposal would present implementation questions, there are reasons to believe that a compensation requirement could produce net benefits for environmental conservation.

The majority concludes that this method of calculation, with its focus on student population, is a permissible interpretation of the statute.

It most assuredly is not. To understand why, one first must look beyond the smokescreen that the Court lays down with its repeated apologies for inexperience in statistics, and its endless recitation of technical mathematical definitions of the word “percentile.” See, e.g., ante, at 12–13 (“‘The n-th percentile is the value xn/100 such that n per cent of the population is less than or equal to xn/100.’” (quoting C. Clapham & J. Nicholson, The Concise Oxford Dictionary of Mathematics 378 (3d ed. 2005))). This case is not a scary math problem; it is a straightforward matter of statutory interpretation. And we do not need the Court’s hypothetical cadre of number-crunching amici, ante, at 17, to guide our way.

Do not be scared, legal America! Even if technical mathematical definitions of the word "percentile," with subscripts, slashes, n's, x's, and everything, were crucial here, the Justices of the Supreme Court would doubtless have been up to the task. The only thing we have to fear is math-phobia itself.

The George Mason/Microsoft Conference Series on the Law and Economics of Innovation will bring together leading academics to present and discuss new scholarship touching on diverse aspects of a key question affecting the technology industry and the process of innovation. Each conference will conclude with a roundtable discussion among top technology industry representatives and regulators to begin to assess the concrete implications of the scholarship for the development of innovative industries.

This first conference in the series will address the complex problem of regulation and how regulation fosters or impedes economic growth through innovation: How should a jurisdiction, particularly an emerging or developing economy, approach its IP or its antitrust regime if it seeks to maximize economic growth—to optimize the role of innovation in growth?

Speakers at this year’s conference include:
Robert D. Cooter, University of California at Berkeley School of Law
Keynote Address
Keith N. Hylton, Boston University School of Law
Marco Iansiti, Harvard Business School
Douglas G. Lichtman, University of Chicago Law School
Stan J. Liebowitz, University of Texas/Dallas School of Management
Stephen E. Margolis, North Carolina State College of Management
Howard A. Shelanski, University of California at Berkeley School of Law
Daniel F. Spulber, Kellogg School of Management
Joshua D. Wright, George Mason University School of Law
Commenters/Moderators:
Jonathan B. Baker, American University Washington College of Law
Ronald A. Cass, Dean Emeritus, Boston University School of Law
Bruce H. Kobayashi, George Mason School of Law
Randal Picker, University of Chicago Law School
Participation is free of charge. Registration is required and lunch is included.

A Virginia court document said that in 2005 a special justice in Virginia declared Mr. Cho mentally ill and an "imminent danger to others," a CNN report said.

The new information, disclosed by police in a news conference today, raises questions about whether warning signs about Mr. Cho's behavior and problems were handled effectively by police and the university.

Serious question: If you are a university official, and become aware of a court document like this [the Times does not say whether Virginia Tech officials knew about it], or other strong evidence that a student is mentally ill and potentially violent, is there anything you can do about it (other then recommending counseling) without violate relevant federal laws banning discrimination against the "disabled?"

UPDATE: Commenter Hans Bader writes:

It's not clear.

And I say that as someone who used to handle cases involving the federal Americans with Disabilities Act and the Rehabilitation Act for the Office for Civil Rights at the U.S. Department of Education.

The law governing K-12 schools, the Individuals with Disabilities Education Act, is still worse, affirmatively coddling violent students who claim to have behavioral or emotional disabilities.

Courts have construed it as requiring schools to not expel violent disabled students under the statute's "stay-put" provision....

State disabilities laws are also sometimes broader than the ADA or the Rehab Act, making life even more difficult for businesses and schools.

I certainly believe that federal statutes, such as the ban on "partial-birth" abortion violate federalism principles, transgress the limits of enumerated powers, and are contrary to the spirit (if not the letter) of the Supreme Court's federalism jurisprudence. (See for instance, this NRO article from 2002.) Given existing precedents, however, I do not beleive that a facial challenge to the federal Partial Birth Abortion act would have fared particularly well.

The big problem with making a commerce clause challenge to this specific statute is that it contains a jurisdictional element. Specifically, the prohibition only applies to "partial-birth" abortions that are conducted “in or affecting interstate or foreign commerce.” This would likely prevent the facial invalidation of the statute, as it effectively limits the application of the statute to those instances that are within the federal commerce clause power. Under existing precedent (e.g. Jones v. United States interpreting the jurisdictional element in the federal arson statute), the Court would almost certainly have adopted a narrow construction of the jurisdictional element to preserve the statute. Moreover, this approach would also convert as-applied constitutional challenges into statutory cases in which the court would merely consider whether a given occurrence fell within the scope of the statute's jurisdictional scope.

I warned in the article and in my November post on Carhart that virtually limitless federal power can be used to uphold far-reaching conservative legislation, as well as liberal, and that it is far from clear that unlimited federal power is in the interests of liberals in an era when the federal government will often be controlled by conservative Republicans. And I explained how the federal partial birth abortion ban is an example supporting my point.

More importantly in a highly diverse society most such controversial social issues are better handled at the state, local, and private sector levels than through a one-size-fits all federal solution. Federalism debates often come down to a matter of whose ox is being gored in a particular case, which is perhaps understandable. However, there are also important systematic advantages of decentralization that are lost under a central government with nearly unlimited power. I will not go over those advantages in detail in this already lengthy post. But I have written about them extensively in the Raich article, and also here, here, here, and here, among other places.

Perhaps one consequence of Gonzales v. Carhart will be at least a modest increase in appreciation for federalism among both liberal and conservative jurists.

UPDATE: As I noted in my November post, the parties in this case did not raise the Commerce Clause/federalism issue, and the Court therefore was right not to address it. This post is not so much a criticism of the Court's reasoning, as an analysis of the case's broader implications.

As David Bernstein points out, Justice Thomas (in a concurrence joined by Justice Scalia) raised the possibility that the federal ban may be outside the scope of congressional powers under the interstate commerce clause. In "Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban," 30 Connecticut Law Review 59 (1997), Glenn Reynolds and I argued that a federal ban on a particular abortion procedure is beyond the scope of congressional powers to regulate interstate commerce -- at least if the interstate commerce power is construed to mean anything less than a grant of powers to Congress to legislate on all possible subjects.

As Justice Thomas noted in his concurrence, the plaintiffs never raised the commerce clause issue. It is easy to understand why. If we are going to start actually obeying the commerce clause in regard to abortion restrictions, then, logically, the federal law against abortion clinic picketing (Freedom of Access to Clinic Entrances Act, "FACE") is also probably unconstitutional.

Reynolds and I suggest that, as a general matter, one way in which a nation can avoid being torn apart by contentious social issues, including abortion, is not to impose uniform national rules, but rather to let different jurisdictions establish different rules. Our approach is consistent with the text of the Constitution, which plainly grants Congress power to create national uniformity over certain specified subjects, but not over everything.

Open Thread on Abortion and Today's Decision:
Comments from an earlier thread suggest that many VC readers want to debate the broader question of abortion rights today. It didn't fit into the earlier threads, so here's an open thread to debate these important questions. As always, please keep it civil.

Was the Abortion Decision Narrow or Broad?:
It's interesting to see how different commentators are reacting to Gonzales v. Carhart. When I skimmed over the opinion, it struck me as pretty much the narrowest ground to uphold the ban; it applied Casey, did not overrule the recent Stenberg decision and did not foreclose a later as-appled challenge. Other commentators are calling the ruling "sweeping," though. For example, over at SCOTUSblog, Lyle Denniston offers this charactization:

Dividing 5-4, the Supreme Court on Wednesday gave a sweeping — and only barely qualified — victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called "partial-birth abortions." The majority insisted it was following its abortion precedents, so none of those was expressly overruled. The dissenters strenuously disputed that the ruling was faithful to those precedents.

It's interesting that Lyle and I would have such different reactions about the scope of the opinion. Of course, a great deal of that may be the difficulty of trying to skim 70 pages of legal writing in 20 minutes so you can offer some instant commentary; often it's hard to tell the scope and significance of a complex legal opinion without reflecting on it for a few hours. Which I guess means that I should read over the opinion again . . .

UPDATE: The comment thread quickly turned into a heated debate over abortion, so I closed up the thread and deleted those comments. Instead I'll open up a thread on abortion generally so readers can debate that elsewhere.

In today's Gonzalez v. Planned Parenthood case, Justice Thomas wrote a very brief concurring opinion, reprinted in full below:

I join the Courts opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). I write separately to reiterate my view that the Courts abortion
jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973), has no basis in the Constitution. See Casey, supra, at 979 (SCALIA, J., concurring in judgment in part
and dissenting in part); Stenberg v. Carhart, 530 U. S.914, 980983 (2000) (THOMAS, J., dissenting). I also note that whether the Act constitutes a permissible exercise of
Congress power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did
not address it. See Cutter v. Wilkinson, 544 U. S. 709, 727, n. 2 (2005) (THOMAS, J., concurring).

Justice Scalia joined this opinion. Thomas, who has a very narrow view of the scope of the Commerce Clause seems to be hinting that he might be sympathetic to a Commerce Clause challenge to the law. That didn't stop Justice Scalia, who wrote an atrocious concurring opinion on the Commerce Clause issue in the medical marijuana case, from joining Thomas's concurrence. I may be reading too much into this, given that Thomas's note that the Commerce Clause issue was not raised is obviously true, and Scalia certainly wouldn't disagree with that particular premise. But I'm hoping that Scalia, too, wishes to hint that, he suspects that Congress dictating nationwide abortion laws exceeds the scope of the Commerce Clause.

Partial Birth Abortion Ban Upheld, But on Narrow Ground:
The opinions are here. As expected, Justice Kennedy wrote the opinion for the Court. Based on a quick skim, it looks like a very narrow opinion: the Court distinguished but did not overrule Stenberg v. Carhart, and upheld the federal statute under the Casey plurality "undue burden" test. The Court also left open the possibility of an as-applied challenge to the statute at a later date. The majority opinion was joined by Roberts, Scalia, Thomas, and Alito. Thomas wrote a short concurrene joined by Scalia. Ginsburg wrote the dissent joined by Stevens, Souter, and Breyer.

Notably, the court assumed rather than decided that the Casey "undue burden" test applied. Justice Kennedy noted that Thomas and Scalia had not agreed with that test, but reasoned that even under it the law would be upheld. Thomas's very brief concurrence, joined by Scalia, states that he joins the majority because it's faithful application of Casey — but that he would want to overrule the line of cases. He also notes that there was no Commerce Clause challenge brought to the law, and that it might face such a challenge later (Aside: Might there be a Thomas-Ginsburg-Stevens-Souter-Breyer majority for that?). Roberts and Alito did not write separately, so we don't know much about where Roberts and Alito will come out beyond the facts of this particular case; they could be anywhere from Kennedy's position on one end to Thomas and Scalia's position on the other.

Justice Ginsburg's dissent is pretty heated, in some places almost Scalia-esque. She contends the majority's opinion is "irrational," and "cannot be understood as anything other than an effort to chip away" at abortion rights. She writes:

Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a womans health.

Also interesting -- at one point, Justice Ginsburg also accuses the majority of having a "way of thinking" that "reflects ancient notions about women's place in the family and under the Constitution --ideas that have long since been discredited." (This accusation is followed by a "compare" string, comparing the rhetoric of Supreme Court opinions 100 years ago to language in one opinion Ginsburg wrote and another that she successfully argued.)

[Note to readers: I'll just add to this post as I read more of the opinion during the morning.]

CBS's hit series "Criminal Minds" recently aired an episode entitled "Lessons Learned," where FBI agents traveled to Guantanamo Bay and coaxed a confession from a known terrorist detainee that led to the prevention of an anthrax attack on a Northern Virginia shopping mall. The point of the story was that the regular interrogation tactics (pictured as brutal assaults on the prisoner) were not working, and that the military should adopt the enlightened methods of the crack interrogators from "Criminal Minds."

Having served as an Army Judge Advocate General's Corps officer in Gitmo, a legal adviser to criminal investigators pursuing leads in the war on terror, and a Military Commissions prosecutor, I have first-hand knowledge and experience about what happens there. And here is the ironic truth: The military has outlawed some of the "Criminal Minds" interrogators' tactics -- in response to pressure by the international community.

Rotunda goes on to dispel quite a few myths, reflected in the t.v. show, about Gitmo.

UPDATE: The title of this post is a reference to the fact that the resolution obviously can't be true, because if the pro-Israel lobby was so powerful, and so successful at stifling debate, one of the most powerful media companies in the world (the BBC) wouldn't be flying students from Qatar to one of the most prestigious universities in the world (Oxford) for an internationally broadcasted debate on the pro-Israel lobby's alleged power.

A New York Times editorial about the Virginia Tech mass murder states, "What is needed, urgently, is stronger controls over the lethal weapons that cause such wasteful carnage and such unbearable loss." My question, now that we have a little more information about the criminal (though I stress far from complete information): What stronger controls over weapons would likely have stopped him from committing the murders, or even led him to kill fewer people?

Note that I'm not asking what controls would have prohibited him from doing something. Murder law, and for that matter the gun control law that banned firearms from campus, already prohibited him from committing mass murder. That didn't seem to help. I'm curious what "stronger controls" would likely have stopped a would-be mass murderer from killing, or at least killing as many.

Should Condemning Affirmative Action Disqualify You from Membership on a State Judicial Conduct Commission?

The New York State Commission on Judicial Conduct has censured Commission Chair Raoul Felder for cowriting (with Jackie Mason) a book called Schmucks! Our Favorite Fakes, Frauds, Lowlifes, Liars, the Armed and Dangerous and Good Guys Gone Bad, and is "exploring [its] options in terms of removing him as Chair." Here's the Commission's reasoning:

Much of the material in this book, and the work as a whole, undermine the appearance of impartiality, and the dignity and probity that is required of the Commission and its Chair. Although the book purports to be a work of humor, much of it is crude, biased, vulgar and otherwise demeaning. For example, we note the following.

The book repeatedly invokes racial, ethnic and religious invective. Such statements are inconsistent with the Commission’s role in enforcing the judicial obligations to refrain from words or conduct that manifest bias based on race, religion or national origin, and to require court employees and lawyers to refrain from such conduct.

The book asserts that “anytime you hear the word ‘allegedly,’ you can bet it’s true.” Such a viewpoint is untenable from a Commission member whose role is to evaluate allegations of judicial misconduct and identify those that have merit.

The book claims that “nothing in our country is more insidious than affirmative action.” Such a sentiment raises a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited from affirmative action.

Appointed government officials are not shielded by the First Amendment from removal the way citizens are shielded by the First Amendment from criminal punishment or civil liability. High executive branch officials who serve at a President's or Governor's pleasure may be fired for their speech, even if that happens only because the President or Governor thinks the speech is inconsistent with his agenda. (Some states may constrain the Governor's removal power, but that would be under state law, not the First Amendment.) Likewise, other officials might be subject to removal for speech that is seen as inconsistent with their official roles. Also, while there is some uncertainty about this, it may well be that censure ought not be seen as a speech restriction, but merely the censuring body's own attempt to speak and participate in the marketplace of ideas. I do not want to argue that the Commission's action is unconstitutional, and as to the first two grounds it might even be meritorious (though much would depend on the details of what the book said).

But I'm quite troubled by the theory that criticism of affirmative action — even somewhat overstated criticism (I'm sure something in our country is more insidious than affirmative action) — should be seen as casting doubt on the person's fitness to serve on a judicial conduct commission, or as the judicial conduct commission's chair.

The argument that "[s]uch a sentiment raises a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited from affirmative action" doesn't fly. If someone says "nothing in our country is more insidious than race discrimination," does that disqualify the person, on the theory that he couldn't pass fair judgment on anyone he perceived to have benefited from racial discrimination? If someone condemns the insidiousness of legacy preferences in admission, does that disqualify the person, on the theory that he couldn't pass fair judgment on anyone he perceived to have benefited from legacy preferences?

If someone condemns the insidiousness of corporate welfare or farm price supports, does that disqualify the person from being a judge, on the theory that he couldn't pass fair judgment on people or corporations that were seen as benefiting from these programs? (I take it the Commission wouldn't want there to be "a reasonable perception that the speaker could not pass fair judgment on anyone he perceived to have benefited [from the condemned program]" as to judges as well as to the chair of the Commission on Judicial Conduct.) If someone condemns the insidiousness of abortion, does that disqualify the person, on the theory that he couldn't pass fair judgment on women who have gotten abortions?

Surely not: We assume that people who disapprove of programs are nonetheless able to fairly decide factual and legal questions raised by people who happen to be beneficiaries of the programs; otherwise, nearly no-one would be eligible for judicial or quasi-judicial office. Why would affirmative action be a sacred cow to which this assumption doesn't apply?

I speak here of the Commission's statement and its reasons for the statement; perhaps the book's discussion of affirmative action deserves censure, but I'm relying on the Commission's defense of its own position, which strikes me as quite unpersuasive.

That's basically what a foreign reporter asked me today, suggesting that the answer must be some new gun control proposal. After all, if someone murdered all these people with a gun, what is America going to do about guns? After past shootings, I got similar questions. Likewise whenever I do talks or debates about gun controls: OK, people say, you say these various gun controls don't work; so what do you propose to do instead, given that there's an undoubted problem out there to be solved?

Well, it turns out that yesterday, about 25 to 40 people were killed in alcohol-related homicides, not including those that died because of their own alcohol consumption. Each year, between alcohol-related drunk driving deaths and alcohol-involved murders, about 10-15,000 Americans (not including the responsible drunk drivers themselves) die. That translates into roughly 25 to 40 deaths per day (the range is wide because the source numbers are necessarily back of the envelope estimates), about the same number as the extra homicide deaths from yesterday's mass shootings. If you counted people whose alcohol consumption killed themselves, the total would likely be far more.

So what are we going to do about it? When are we going to ban alcohol? When are we going to institute more common-sense alcohol control measures?

Well, we tried, and the conventional wisdom is that the cure was worse than the disease -- which is why we went back to a system where alcohol is pretty freely available, despite the harm it causes (of which the deaths are only part). We now only prohibit alcohol abuse, generally allow alcohol purchase and possession, and regulate alcohol purchase and possession fairly lightly. Some of the regulation, such as bans on sales to minors, are quite likely wise (at least as applied to minors; I express no opinion on bans on sales to 18-to-21-year-olds), though imperfect. Others, such as bans on Sunday alcohol sales, are pretty clearly unwise. Others are closer calls, but on balance the answer to "what are we going to do about alcohol-related deaths?" is "not much, other than trying to catch and punish alcohol abuse."

Now the likely pathologies of gun prohibition -- or even of many regulations that fall short of prohibition -- would probably differ in some ways from the likely pathologies of alcohol prohibition. I've talked of some of those likely pathologies elsewhere, but this post is not about that. My point is simply that the right answer to "so what are we going to do about it?," even when the "it" is horrible, is sometimes "not much."

We should certainly consider proposals that aim to ameliorate the problem, and weigh their costs and benefits. But we should not presume that there's somehow a moral imperative to Do Something. In fact, there's a moral imperative not to do something that's likely to make matters worse.

My piece is a reply to an earlier Colloquy article by Northwestern University Law School Professor David A. Dana, which is available here. David's abstract summarizes his argument well:

This Essay provides a review of the changes in state law following Kelo v. City of New London, and in particular focuses on the dominant reform: the prohibition of economic development condemnations in non-poor areas (which Kelo allows, as a matter of federal constitutional law) coupled with continued allowance for blight condemnations in poor areas. This dominant reform, the Essay argues, privileges the stability of middle-class households over the stability of poor ones, and thus expresssively devalues poor people and poor communities in legal and political discourse.

Here's an excerpt from my abstract:

. . . I agree with Professor Dana that the problem of blight condemnations and its impact on the poor deserve greater attention but take issue with his argument that post-Kelo reform efforts have systematically treated the poor worse than middle and upper class homeowners.

Most of the states that have enacted post-Kelo reform laws have either banned both blight and economic development takings or defined "blight" so broadly that virtually any property can be declared "blighted" and taken . . . Only nine states are actually guilty of allowing only the condemnation of "blighted" areas, narrowly defined. Even these nine flawed reforms are probably better for the poor than no reform at all. Such a law might benefit many poor people who live in non-blighted areas and are potentially vulnerable to economic development takings. Survey data suggests that the poor themselves overwhelmingly oppose economic development condemnations, suggesting that they are not much concerned about the "expressive harms" that worry Professor Dana. Finally, the exclusion of blighted property from the ban on "economic development" condemnations in some states is not necessarily explained by indifference to or contempt for the interests of the poor , , ,

Eugene Volokh wonders how soon is too soon to start the inevitable post-Virginia Tech dialogue about gun control, and Joshua Claybourn chimes in. Obviously, this kind of meta-debate is somewhat academic, since nobody -- from the New York Times editorial page to Michelle Malkin -- seems interested in waiting even a day before trotting out their hobby-horses.

I'm extremely skeptical, though, that there's actually anything significant to learn about gun policy from yesterday's violence: Extreme, unpredictable events like this one seem like precisely the kind of thing that shouldn't dictate lawmaking decisions (though of course they inevitably do). If there's a case for gun control, it's in the daily run of shooting deaths that don't make the front page; if there's a case against gun control, it's in the daily run of crimes deterred by an armed citizenry (and in more abstract questions of personal liberty), not in the faint chance that a kid with a conceal-and-carry permit might have taken the Virginia killer down.

David Bernstein mentioned him below, but I thought this was worth a picture, and a longer excerpt, this one from an AP story:

Relatives said Liviu Librescu, an internationally respected aeronautics engineer and a lecturer at the school for 20 years, saved the lives of several students by barricading his classroom door before he was gunned down in Monday's massacre ....

Librescu' students sent e-mails recounting the last moments of their teacher's life to his wife, Marlena, his son, Joe, told The Associated Press on Tuesday.

"My father blocked the doorway with his body and asked the students to flee," Joe Librescu said in a telephone interview from his home outside of Tel Aviv. "Students started opening windows and jumping out." ...

When Romania joined forces with Nazi Germany in World War II, [Librescu] was first interned in a labor camp in Transnistria and then deported along with his family and thousands of other Jews to a central ghetto in the city of Focsani, his son said. According to a report compiled by the Romanian government in 2004, between 280,000 and 380,000 Jews were killed by Romania's Nazi-allied regime during the war....

As a successful engineer under the postwar Communist government, Librescu found work at Romania's aerospace agency. But his career was stymied in the 1970s because he refused to swear allegiance to the regime, his son said, and he was later fired when he requested permission to move to Israel.

After years of government refusal, according to his son, Israeli Prime Minister Menachem Begin personally intervened to get the family an emigration permit....

It appears that the Virginia Tech murderer was a resident alien. Did this mean someone broke the law by selling him the guns? (Naturally, the killer showed himself to be unconcerned about following the law, but the premise of some gun control laws is that they may deter generally law-abiding people from selling guns to those who might be dangerous.)

I don't think so. Federal law bars most nonresident aliens, including illegal aliens, from possessing a gun, but treats resident aliens the same as citizens. Virginia law likewise doesn't bar gun ownership by resident aliens, and even allows them to get concealed carry permits.

Some states or cities have banned gun ownership by aliens, or at least aliens who hadn't declared an intent to become citizens. (See here for my criticism of one such law, in Omaha.) Such laws may violate the federal Equal Protection Clause, by discriminating against noncitizens without adequate justification; but the one case I've seen on the subject, State v. Hernandez-Mercado, 124 Wash. 2d 368 (1994), rejected such a challenge.

The laws may also violate state constitutional provisions, if the provision isn't limited to citizens. The Washington Constitution's provision is limited to citizens; but the Michigan Constitution is not — it says "Every person has a right to keep and bear arms for the defense of himself and the state" — and the Michigan Supreme Court accordingly struck down a ban on gun possession by noncitizens in People v. Zerillo, 219 Mich. 635 (1922). (At the time, the Michigan provision differed slightly — it omitted "keep and" — but not materially.)

The Utah Supreme Court upheld a ban on gun possession by noncitizens in State v. Vlacil, 645 P.2d 677 (Utah 1982), despite a constitutional provision stating, "The people have the right to bear arms for their security and defense, but the legislature may regulate the exercise of this right by law." It is possible (though in my view mistaken) to read "the people," as opposed to Michigan's "every person" or Nebraska's "all persons," as referring to individuals — which Utah courts have done as to the right to bear arms — but only to individuals who are full members of the American polity. But the Utah Supreme Court didn't even do that; it simply cited to State v. Beorchia, 530 P.2d 813 (Utah 1974), which reasoned that "It is quite evident from [the constitutional text] that the Legislature had sufficient power to enact thestatute in question." In my view, it is not at all evident that the power to regulate the exercise of a right includes the power to deny the right to whatever group the legislature chooses.

If banning gun ownership by noncitizens is constitutionally permissible, is it a good idea? I don't think so. It seems to me that resident aliens, at least, and perhaps legal but nonresident aliens, are just as morally entitled to try to defend their lives against crime as citizens; their ability to do so is just as valuable to society as citizens' ability to do so; and they seem no more likely than citizens to use the guns to cause harm. Moreover, in a nation with over 200 million firearms in private hands, it seems highly unlikely that the rare noncitizen with mass murder on his mind will indeed be stymied by laws banning gun possession by noncitizens, and will be stopped from getting a gun on the black market. That unlikely possibility of social benefit is substantially outweighted by the cost of denying millions of law-abiding noncitizens of their ability to effectively defend themselves.

Please correct me if I've misunderstood the often quite complicated federal and state gun laws that govern resident aliens; but I'm pretty sure I read them correctly.

UPDATE: A correspondent informs me that "there is one difference between treatment of citizens and resident aliens. Resident aliens have to provide extra identification to prove 90 days' residence in the state. See 27 CFR sec. 478.124(c)(3)(ii)." I appreciate the extra information, though it does not much affect the big picture analysis. (One could argue against even this requirement, given that it creates a fairly long waiting period for buying a gun in certain situations; but this nonetheless seems a relatively small detail relative to the broader question of whether non-citizens should be able to own firearms.)

Loren Coleman's weblog "The Copycat Effect" (which is also the name of his book) examines the copycat effect of the Virginia Tech murders. He points out that a school attack last week in Oregon (no fatalities) appeared to have been inspired by a recent National Geographic tv special on Columbine. He offers a grim warning of the high risk of more copycat attacks in the next several weeks. Pointing to school attacks in Canada and Germany in recent years, he notes that the problem is not confined to the United States.

American Spectator has an article by John Tabin on "gun free zones" which includes an interview with me.

At my website, I have a variety of articles on policies which have worked to prevent or stop school shootings, including Israel's policy of arming teachers.

The rules on the purchase of firearms by non-immigrant aliens (such as the Virginia Tech killer, who held a green card) is here. Basically, they must have been in the U.S. for at least 90 days at the same residence. They under the same criminal records background check as a U.S. citizen, plus an additional check with Immigration and Customs Enforcement.

Although we do not know what ammunition magazines the killer used, ABC News was plainly wrong in claiming that the 2004 sunset of the 1994 Clinton "assault weapon" law brought magazines with a capacity of over 10 rounds back into the marketplace. The 1994 law banned the manufacture of new magazines, but magazines made before September 1994 were always readily-available on the marketplace.

Finally, I will be on the CTV (Canada) program "The Verdict" tonight, from about 9:19-9:30 p.m. Eastern Time. I will be debating Wendy Cukier, Canada's leading gun prohibition advocate. The program should be available on the CTV website not long afterwards.

Warshak v. United States:
Tomorrow the Sixth Circuit will be holding argument in Warshak v. United States, a rather odd case involving e-mail privacy. I'm pretty sure the court won't get to the merits, but it's a notable case nonetheless.

Warshak, a suspect in a massive fraud case, sought an injunction against the government obtaining his e-mail from his ISP pursuant to the Stored Communications Act. Warshal reasoned that the Stored Communications Act lets the government obtain e-mail in some cases with less process than a full search warrant, and that if the government were to obtain his e-mail in that way that it would end up violating his Fourth Amendment rights. The district court judge in the case ended up crafting a rather strange injunction to address possible Fourth Amendment shortcomings in the statute: the judge ruled that the United States could not obtain e-mail with less process than a warrant in any case anywhere in the Southern District of Ohio unless it gave that person prior notice and an opportunity to be heard.

The government's brief on appeal before the Sixth Circuit is here; Warshak's brief is here.

I ended up deciding not to file an amicus brief in the case because it seems very unlikely that the court will reach the merits. I don't think I have ever come across a preliminary injunction of a statute on Fourth Amendment grounds, and I imagine the court will reverse on procedural grounds without getting into the merits. That's the right call, in my view: With one quirky historical exception, review of Fourth Amendment challenges has always been as-applied, not facial. Courts ask whether the government's conduct was an unreasonable search or seizure, not whether following the statute will in some cases or all cases violate the Fourth Amendment. (For the classic discussion of the dangers of facial review of statutes under the Fourth Amendment, see Chief Justice Warren's opinion in Sibron v. New York.)

A facial review in this particular case would be particularly problematic. There are no facts yet, and the Fourth Amendment is intensely fact-specific. Further, we don't even know if the government's reading of the statute is correct; there's a split in the courts as to what the relevant government authorities actually are (as explained here). Finally, the Fourth Amendment issues in the case are both incredibly important and tremendously complex; they would require a court to wade through the reasonable expectation of privacy test in remotely stored files, the standard of reasonableness for orders to compel third party data, and third-party consent rights for system administrators — and all without any facts and no clear sense of the relevant statutory law.

I'm pretty sure the Sixth Circuit won't want to jump into all of these questions in such an odd procedural posture. It seems pretty clearly unwise to try. It makes much more sense for the court to let the case develop in the usual course: Warshak has already been indicted, and if e-mail evidence is used against him he can file a motion to suppress (and/or bring a civil claim under Bivens).

If you're interested in more on the substantive legal issues here, I go into depth on a number of these issues in my casebook; I also have an extended discussion of the role of the courts in applying the Fourth Amendment to new technologies in this article.

UPDATE: There were also two amicus briefs filed on the merits of the case, just in case the panel delves into the Fourth Amendment issues. A group of privacy law and Internet law professors led by Susan Freiwald and Patricia Bellia filed one brief; the Electronic Frontier Foundation filed another. I think both briefs raise interesting arguments, although the issues are much more complicated than either suggests. In any event, I think the procedural posture of the case means that the Fourth Amendment issues are best left for another day.

ANOTHER UPDATE: To get an idea of how difficult some of the Fourth Amendment issues are, check out the amicus brief I wrote in 2002 in a somewhat similar Eighth Circuit case, United States v. Bach. I wrote that amicus brief because I wanted to make sure the panel recognized the very difficult issues it was potentially facing. I thought about updating my Bach amicus brief and submitting it in the Warshak case, but I ended up being short on time (and I figured the procedural problems made it unlikely the court would get to the substance). Note also that the facts of the Bach case did not implicate the third-party consent issues raised in Warshak.

Zuni Public School District v. Dept of Education:
The Supreme Court handed down an interesting decision today in Zuni Public School District No. 89 v. Dept of Education, an administrative law case involving a federal program to assist local school funding in particular localities. The Department of Education had come up with a formula for calculating when states had "equalized expenditures" under state programs, letting states contribute less money and still receive federal assistance. The case considered whether the agency's method of calculating that was consistent with the federal statute creating and implementing the program.

A majority of the Court — Breyer writing for Stevens, Ginsburg, Kennedy, and Alito — upheld agency's practice under Chevron. The opinion reads rather oddly, though: Instead of just applying the usual Chevron two-step test, Justice Breyer primarily argues that he thinks Congress probably intended to let the agency make the kind of decisions it made. Justice Stevens added a concurrence, saying that he thought the legislative history was clear enough to make clear that the agency practice was okay. Justice Kennedy also wrote a short concurrence, joined by Justice Alito, noting the rather odd structure of Breyer's opinion but concluding that "we must give deference to the author of an opinion in matters of exposition."

Justice Scalia penned the main dissent, joined by Roberts and Thomas (and, for just one part, Souter). Scalia comes out swinging at Justice Breyer's approach to interpreting the statute:

In Church of the Holy Trinity v. United States, 143 U. S. 457 (1892), this Court conceded that a churchs act of contracting with a prospective rector fell within the plain meaning of a federal labor statute, but nevertheless did not apply the statute to the church: It is a familiar rule, the Court pronounced, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers. Id., at 459. That is a judge-empowering proposition if there ever was one, and in the century since, the Court has wisely retreated from it, in words if not always in actions. But today Church of the Holy Trinity arises, Phoenix-like, from the ashes. The Courts contrary assertions aside, todays decision is nothing other than the elevation of judge-supposed legislative intent over clear statutory text.

I have meetings and teaching all day so I probably won't have time to say much on the opinion (at least today), so pelase tell me what you think. Plus, I'll likely be writing an article on the case for the Banking Law Journal, so I'd appreciate any enlightenment anyone has to provide.

In Daubert v. Merrell Dow Pharmaceuticals (1993), the Supreme Court ruled that expert testimony is only admissible in court if it passes a strict reliability test, and assigned the role of evidentiary "gatekeepers" to federal trial judges. This standard, later codified as Rule 702, has undoubtedly provided significant protection against the worst abuses of junk science since its inception. But has it created a better overall environment for sound scientific evidence? Are courts misusing the rule to bar legitimate scientific evidence? Do judges administer Daubert standards effectively? Are there lingering problems caused by experts being chosen and paid by the parties to the case? What are the future opportunities for reforming the use of scientific expert testimony in adversarial litigation? In his new article "Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution," George Mason University School of Law professor David E. Bernstein addresses these questions and suggests that increased use of court-appointed experts would represent a significant improvement.

At this AEI event, Professor Bernstein will present his paper, followed by a panel discussion with Edward K. Cheng of Brooklyn Law School; defense attorney Joe G. Hollingsworth of Spriggs & Hollingsworth; Deborah Runkle of the American Association for the Advancement of Science; and epidemiologist David Michaels of George Washington University, who directs the Project on Scientific Knowledge and Public Policy (SKAPP). Ted Frank, director of AEI’s Liability Project, will moderate.

According to stories in the Daily News and Ha'aretz, Professor Liviu Librescu barred the door to his classroom with his body while his students escaped out the window. Librescu was fatally shot. To his family, May God comfort you among all the mourners of Zion and Jerusalem.

We're back to talking non-technically, so you may want to tune back in if you tuned out when I started explaining the technical curlicues of the model. If you find yourself questioning some of the results, you may want to refer back to previous posts, in particular the third post, which describes the basic model.

* * *

I have explored how privatization affects the amount, or effectiveness, of economically self-interested pro-incarceration advocacy. For purposes of this Article, I have so far assumed, with the critics of prison privatization, that such advocacy is undesirable. But this assumption is highly questionable.

For one thing, members of an industry, whether public or private, who advocate a policy that benefits them are not necessarily motivated by self-interest, even unconsciously. When Don Novey, the president of CCPOA, says he just wants to lock up scumbags, perhaps we should take him at his word. The same goes when a DOJ official speaks of the need to fight “the scourge of child pornography,” when CACI says terrorism is “heinous,” when a leading environmental citizen-suit litigator argues against weakening the environmental laws whose monetary penalties fund its operations, or when doctors who perform abortions oppose abortion restrictions.

People who advocate a policy that benefits them or their industry may be acting out of naked self-interest; they may be deluded into believing their particular interest is the general interest; their participation in an industry may lead them to rightly appreciate their industry’s contribution to the public interest; they may have joined the industry because they were sympathetic to its interests; or maybe they just coincidentally believe that the policy is right.

Nor is even nakedly self-interested advocacy an obvious evil, even when prison policy is at stake. From a procedural perspective, some argue that optimal criminal law should reflect all interests, including the benefit to the criminal of committing the crime; and if this is right, prison providers’ self-interest is also relevant. Moreover, some see lobbying as a means by which groups provide their views to decisionmakers and the public and thus enrich democratic debate. Others may find it illegitimate, on democratic grounds, to even consider the substance of people’s future political advocacy in deciding whether to privatize.

And from a substantive perspective, if criminal policy should be judged by a substantive external standard—for instance, whether sentences are too long in an objective sense—one cannot object to pro-incarceration advocacy on criminal-law-specific grounds without first establishing that such advocacy would move criminal law in a substantively undesirable direction.

Nonetheless, if one believes that the effect of privatization on pro-incarceration advocacy is relevant, this Article has pointed out the inadequacies in the current formulation of the political influence challenge to privatization. My opinion, based on the above theory and evidence, is that privatization will probably not worsen any political influence problem, and may alleviate it. The public goods model seems to describe many situations of political advocacy fairly well. The assumption of the principal model—that the probability of getting a policy change only depends on the total amount spent—likewise seems to describe many situations, like initiative or election campaigns.

There’s always room for more realistic theories—for instance, my analysis of what motivated public-sector unions, while common in the labor economics literature, is highly simplified; in assuming that private prison firms were profit-maximizing, I suppressed any analysis of agency costs within the firm; and my back-of-the-envelope estimate of the benefit of incarceration to the different sectors was just that—an estimate. Nor have I entertained the possibility that, when privatization is on the agenda, prison system actors spend more resources fighting over that, which might crowd out pro-incarceration advocacy. So my specific conclusions here are tentative.

But what is not tentative is that this sort of analysis is necessary if one is to make the political influence argument properly, whether in the prison context or more generally. General assumptions will not do. As Mancur Olson (somewhat hyperbolically) observed, “the customary view that groups of individuals with common interests tend to further those common interests appears to have little if any merit.” Critics of privatization who have charged that privatization has increased (or will increase, or runs a substantial risk of increasing) industry-expanding advocacy have not explained what it is about the lobbying world that would make this happen. Either they are unambiguously wrong, or they are only right under a particular set of empirical assumptions that they must spell out.

One further note. If one opposes self-interested pro-incarceration advocacy, one may object at this point that I have not exonerated private prisons with my economistic legerdemain. Rather, I have only shown that the entire system is corrupt, and perhaps I have unwittingly demonstrated that the only way out of this mess is to reject the “interest group model of politics” entirely as it applies to criminal justice policy.

Fair enough. If self-interested pro-incarceration lobbying is indeed undesirable, then perhaps the system is corrupt. But how does this translate into an argument against prison privatization? It’s not enough to show that private prisons are part of the problem: Removing one problem isn’t guaranteed to make things better when there are other problems around. As the models above have suggested, even if all this political advocacy is illegitimate, the existence of the private sector reduces public-sector advocacy and may reduce total advocacy; eliminating the private sector may thus exacerbate the problem.

Nor is it just economists who oppose making the best the enemy of the good: As Rawls (no economist he) teaches, the analyst who makes specific policy recommendations in our fallen world—not in the idealized world of “strict compliance” with the principles of justice that characterizes a “well-ordered society”—is acting in the realm of “nonideal theory,” which asks how the “long-term goal” dictated by ideal theory “might be achieved, or worked toward, usually in gradual steps. It looks for policies and courses of action that are morally permissible and politically possible as well as likely to be effective.”

Because nonideal theory requires that we ask about the real-world effectiveness of any reform, merely observing undesirable lobbying by the private sector will not support an argument against prison privatization unless, say, privatization actually increases “the danger of . . . corrupting influence” or “compromise[s] further the possibility of legitimate punishment.”

If it turns out that privatization actually reduces pro-incarceration lobbying—if, with privatization, prisoners’ sentences are less influenced by improper factors than they otherwise would be—it is unclear that there is any “tension between the state’s use of private prisons and the demands of” liberal legitimacy. If “private prisons are by no means unique,” and if any prison provider, public or private, will lobby for incarceration, any “tension” has nothing to do with private prisons and everything to do with the crooked timber of humanity.

* * *

The same sort of analysis that I have conducted here on the prison industry can also be used to evaluate the claim that, say, buying weapons from defense contractors (rather than having the military make them in-house) will exacerbate pro-war lobbying. Since governmental providers of defense services—i.e., the military leadership—have, on some accounts, been notorious pro-war lobbyists throughout history, such a claim is not credible unless one can tell a plausible story about why any defense contractor lobbying won’t crowd out some lobbying by the military itself; and doing this requires taking a position on what motivates the people at the Pentagon.

The same goes for private attorneys general, private redevelopment corporations, private landfill operators, and the like. The result won’t always be the same, and the political influence argument may turn out to be correct in some of these cases and incorrect in others. But this should be the structure of the argument.

The surprising moral of this story should not be that surprising. Indeed, the central insight here was also an important argument in favor of the antitrust laws. William Howard Taft wrote, shortly after the enactment of those laws, that “business methods and plans . . . directed to . . . suppressing competition . . . had resulted in the building of great and powerful corporations which had, many of them, intervened in politics and through use of corrupt machines and bosses threatened us with a plutocracy.” The argument is plausible, and it is likewise plausible that privatization, by fragmenting an industry into at least two chunks (and more if private firms don’t cooperate on advocacy), may similarly reduce that industry’s political power.

In a roundabout way, then, privatization is a form of antitrust, and antitrust is a form of campaign finance regulation. It may not be worthwhile to privatize industries—or break up large corporations—merely to reduce their political advocacy, but at the very least this may count as an unintended—and possibly happy—side effect of privatization that, if real, should be taken into account in future analysis.

In Praise of Defense Lawyers:
My Wall Street Journal op-ed on the Duke rape case is today's featured article on OpinionJournal.com and available without subscription here. An excerpt:

The crucial importance of defense lawyers was illustrated in reverse by the Duke rape prosecution, mercifully ended last week by North Carolina Attorney General Roy Cooper's highly unusual affirmation of the defendants' complete innocence. Others are rightly focusing on the "perfect storm," generated by a local prosecutor up for election peddling to his constituents a racially-charged narrative that so neatly fit the ideological template of those who dominate academia and the media. But perhaps we should stop for a moment to consider what saved these young men: defense attorneys, blogs and competing governments.

Gary Kasparov to be Investigated by KGB Successor Agency for "Promoting Extremism":

Although former chess world champion and Russian opposition leader Gary Kasparov has been released from detention, he is now going to be investigated for "promoting extremism" by the FSB (hat tip: VC reader Victor Steinbok), the Russian domestic intelligence agency that is the successor to the dreaded KGB and includes numerous former KGB officials in its ranks. The FSB does not enjoy as much coercive power as the KGB once did, nor does it have any equivalent to the old Soviet system of Gulag concentration camps, where tens of millions died. There is nonetheless a disturbing amount of continuity between the two agencies in both personnel and policies.

As I noted in my earlier post about Kasparov, the measures taken against him are important not only in their own right, but as a deterrent to other opposition political activity. If the government of President Vladimir Putin (himself a former KGB colonel), can repress a world-famous figure like Kasparov with impunity, it can even more easily do the same thing to less well-known members of the opposition who have fewer supporters in the West. Moreover, if Kasparov's statements can be described as "promoting extremism" and thereby banned, the same can be done with virtually any speech critical of Putin's government.

Kasparov's political views are quite conventional by Western standards (and also by those of Russian advocates of democracy and liberalization). He supports a Russia with strong protection for civil and economic liberties, political decentralization, and a non-imperialistic foreign policy. For a sampling of Kasparov's views in English, see here and here. For the official (Russian language) platform of Kasparov's United Civic Front, see here. The latter focuses on political democratization; most of it would be completely uncontroversial in any Western democracy. If Kasparov's platform is illegal "extremism," so is virtually any other liberal democratic-oriented opposition to the policies of Putin's increasingly authoritarian Russian state.

Eugene poses this question in his last post, and asks whether the rate of such incidents has increased. The answers are "very rare," and "probably not." In her 2004 book Rampage: The Social Roots of School Shootings (pg. 51), Harvard Professor Katherine Newman notes that there was no more than one such case in the entire US for any year between the 1974-1975 and 1991-92 school years. There was a small spike in the 1990s (starting with 2 cases in 1993, and a high of 6 in 1997-98), but falling again to 1 case in 1999-2000 and 0 in 2001-2002. It is likely that there was a brief 1990s spike caused by copycats imitating a few highly publicized cases, such as Columbine. At the same time, the peak years still had such low absolute numbers of cases that it is quite possible that the increase was simply a result of random chance variation. I don't have comparable statistics on mass shootings on university campuses. But such cases are likely to be even more uncommon than those in schools, given that the total number of murders occurring on college campuses nationwide tends to be about 10 to 20 per year (as noted in my last post). The extreme rarity of such incidents should be kept in mind as we decide what, if any, policy changes should be made in response to the Virginia Tech tragedy. Some changes may well be warranted, but we should guard against costly overreactions such as the draconian "zero tolerance" policies implemented in many schools after the Columbine attacks in 1999. As a professor in the Virginia state university system (of which Virginia Tech is a part), I hope we can resist the temptation to enact similar measures.

Monday, April 16, 2007

"Leaping Shampoo" Video:
Specifically, it's a video of the Kaye effect created by scientists at the University of Twente in the Netherlands. According to Wikipedia, the Kaye Effect is an unusual (and very shortlived) effect you can get when you pour a viscous liquid onto a surface and the surface shoots back a jet in the opposite direction. Very cool. Hat tip: ZSM.

argues Christopher Hitchens in Slate. I know very little about French politics, but I'm interested enough to ask those of our readers who know: What do you make of this argument, and what do you expect of the coming French elections?

I'd heard some suggest that mass shootings are more common now (in the post-Columbine era) in the U.S. than before; does anyone have some data as to whether this is so?

I have one seemingly reliable piece of data handy — the list in Gary Kleck's Targeting Guns, p. 144, reports on all the mass shootings Kleck knew of from 1984-1993, with mass shootings "defined here, somewhat arbitrarily, as an incident in which six or more victims were shot dead with a gun, or twelve or more total were wounded" (pp. 124-25). That list reports 15 mass killings, roughly evenly distributed from 1984 to 1993. (For those who want to check for completeness, the murderers are Ferguson, Ferri, Hennard, Doody & Garcia, Abeyta, Pugh, Wesbecker, Purdy, Farley, Simmons, Schnick, Cruse, Sherrill, Huberty, and Thomas.) My sense is that the frequency has not gone up materially since then, though I should note that this is just based on my likely quite faulty memory.

On the other hand, only one of those shootings (Purdy, in Stockton) was at a school, and it did not involve a student, unlike the Columbine murders and some of those that followed. My sense is that schoolyard shootings are indeed up since Columbine, but again I don't have handy data about how much. I'd also love to hear about data from before 1984; of course, Charles Whitman's murders in 1966, were at a university, but I do not know of any pattern of school or university mass shootings after that. (I would bracket the 1970 Kent State shootings, simply because they seem so radically different in motivation from the other killings that it's hard to see what sound policy analysis one could engage in that would group these shootings together with the other shootings I mention.)

UPDATE: A Better Where To Find has a long list, not claimed to be complete, of multiple-victim shootings, though with a somewhat different selection criterion than that given above, and limited to schools.

Policy and Reactions to Tragedy:Eugene asks below about how we respond to tragedies, and in particular whether it is appropriate to focus on policy so soon after hearing about tragedies. Obviously people can do what they like; people are complicated, and will react to tragic events in different ways. But in my view, the problem with responding to news of tragedy with policy ideas right away is that we tend not to realize in such situations how often our "proposals" are really expressions of psychological need. It's human nature to respond to tragedy by fitting it into our preexisting worldviews; we instinctively restore order by construing the tragic event as a confirmation of our sense of the world rather than a threat to it.

This means that often we won't pay a lot of attention to the details of tragedies and what caused them. We'll just know deep down inside what happened, and what caused it, and how to stop it next time. Take today's tragic events at VA Tech. If you're committed to gun control, the tragedy probably proves to you that there are too many guns; if you're against gun control, the tragedy probably proves the exact opposite. Given that people will tend to see in events what they want to see, turning to policy right away will come off as rudely "playing politics" to those who don't share your worldview. And obviously this doesn't foster a helpful environment for policymaking, either.

Tragedies as Occasions for Discussing Ways To Prevent Repeat Tragedies:

The tragic shootings at Virginia Tech have already led some to ask whether more gun control — or more private gun carrying, including at universities — would help avoid such crimes in the future. They have also led some (for instance, Eric Muller (IsThatLegal?)) to fault those who are publicly discussing such policy responses so soon after the deaths.

It seems to me clear that such discussions are generally sound, even worthy. Using the attention created by a tragedy to try to prevent similar tragedies strikes me as in principle an eminently proper response, a way to allow at least some good to come from the evil. Preventing the tragedy from leading to unsound reactions likewise strikes me as an eminently proper response. (Complaints that legislative proposals triggered by the tragedies "politicize" the tragedies thus strike me as misguided, though of course complaints that particular proposals are practically or morally unsound may be eminently sensible.) But the question is whether we should pause before engaging in such discussions; in Eric Muller's words, "Let's wait at least a day before trying to score political points, shall we?"

I'm not sure what the answer is, but I thought I'd pose the question here (hoping that at least there's nothing wrong with using the tragedy as an occasion for asking this meta-question). I don't think the answer is clearly "yes, wait," the way it is as to critical obituaries of writers whose work one dislikes; responding to death using unpersonalized policy discussion is different from responding to death using personalized criticism of the dead person. On the other hand, I don't think the answer is clearly "no, go ahead," at least as a matter of first principles; perhaps we ought to have a social ritual of grief and condolences first, policy analysis (even of the most cerebral sort) later, and perhaps the very immediacy of the tragedy may lead to unsound first thoughts about the policy questions.

One extra piece of the puzzle: Even if we think that in the abstract the right approach would be to wait a day, should our analysis change because others will surely start talking about legislative responses right away?

The Brady Campaign, for instance, responded quickly (at the latest by 3:30 pm Eastern time the day of the murders) with condolences coupled with a call for more gun control. [UPDATE: So has the Violence Policy Center, as of 7 pm Eastern or earlier.] I first learned of the incident when I got a call from a French news agency that wanted to ask me all about American gun controls, and how the tragedy would likely affect the political debate; I expect that American news outlets will likewise discuss this in the coming hours.

Should this reality, coupled with the plausible expectation that there will be many pro-gun-control sentiments expressed even today, lead pro-gun-rights forces to speak up at the same time as the pro-gun-control forces are? Or would that just be practically counterproductive, as well as in bad taste (assuming that one thinks as a matter of first principles that talking about legislative responses right now is indeed in bad taste)? Two wrongs don't always make a right, but sometimes the right answer for one side is indeed altered by what the other side is doing. (That's why, for instance, advocates of campaign finance reform might both (1) prefer that all candidates fund their campaigns only using small donations, but (2) when their adversaries are getting big donations, conclude that it becomes proper for pro-reform candidates to seek out such big donations, too, at least until bilateral disarmament is achieved.)

In any event, I thought I'd pose this question, and see what our readers thought.

The Yale Law Journal Pocket Part is soliciting essays and commentaries on the role of law, policy, and extralegal tactics in regulating instances of cyber bullying, including defamatory "Google bombing." How, if at all, should regulatory schemes address providers of information who make no endorsement of the information’s content?

I'm no expert in either the relevant law or the relevant technology. But here's my amateurish idea: Would it help to somehow link up provider immunity with search robot exclusion? Under current law, site owners are immune from liability for the speech of others under 47 U.S.C. 230. This means that a site owner can allow anonymous comments, announce that anything goes, and then sit back and watch as the trolls engage in all sorts of foul play. Search engine robots then pick up the foul play, resulting in harm weeks or months later when a third party googles that person or event. A lot of people may be harmed, but the law can't stop it: the provider is immune and the commenters are anonymous.

If I'm not mistaken, though, the same provider who is immune under Section 230 also controls the scope of the resulting harm. Why? Because, at least as I understand it, the same provider controls whether search engine robots are permitted to come to the site and collect the information in the first place. I believe that blocking search engine robots is pretty easy, or at least could be configured to be easy; it just requires a line of htmlcoding.

Where does that take us? Well, it suggests to me that we might consider conditioning legal immunity on disabling search robots. Providers would be immune for liabililty relating to particular content only if they had taken technical measures to block search engine robots from collecting that content. So if you wanted to host a free-for-all for others and be immune from liability, you could do that: you would just have to keep the resulting content from being fed into Google. On the other hand, if you wanted Google to pick up the content, for whatever reason, you would need to assume the risk of liability for that content you're letting Google collect.

What kind of impact would such a rule have? I imagine it would lead a lot of providers to block Google and other search engines from collecting materials from message boards, blog comment threads, and the like. The unmoderated and anonymous comments would still be out there; they just wouldn't be found using search engines.

Anyway, that's my idea. I may be way way off, either as a matter of law or technology; I'm not sure that it's so easy to diable the robots, and I'm not sure it would be easy to amend Section 230 to condition immunity on doing so. But I figured I would throw out the idea and get your thoughts.

I'm in the private sector and for the first time in my life I'm earning money. You know that's sort of part of the Jewish tradition and I do not find anything wrong with that.

Thompson "later apologized for the comments that had caused a stir in the audience, saying that he had meant it as a compliment, and had only wanted to highlight the 'accomplishments' of the Jewish religion": "'What I was referring to, ladies and gentlemen, is the accomplishments of the Jewish religion. You've been outstanding business people and I compliment you for that.'"

Actually, while earning money in the private sector is part of the tradition of most religions and ethnicities that have survived and thrived, valuing the earning of money in the private sector is, to my knowledge, more an aspect of "Jewish tradition" than of at least some other traditions.

Judaism, for instance, lacks the sense that poverty is virtuous, long ostensibly (and sometimes actually) present in Christianity. Jewish culture has also historically lacked the condemnation of mere commerce -- as opposed to military success, political power, or land ownership -- as dirty and grubby, perhaps partly because Jews were so often excluded from the military, politics, and land ownership. I doubt, for instance, that Jewish culture has historically looked down on people who built their names by moneymaking the way that English upper-class culture (as memorialized in the Austens and Trollopes of the world) looked down on such people. (I should note that few cultures genuinely disapproved of the rich, but many cultures liked their rich to be Rich From Time Immemorial, and the actual making of riches was seen as vulgar.)

Recent Jewish culture has included some other ideological forces that have devalued commercial success, chiefly Socialism, even non-Socialist social-welfarism, and, in some measure, the exaltation of intellectual pursuits over commercial ones. Today in America, it may actually be that Protestants on average endorse commerce as a worthy way of life more than Jews do, largely because of the retreat of virtuous poverty as a value in American Protestant culture, the general demise of the contempt for new money (especially commercial money), and the increase of anti-commercial (or at least anti-commerce-as-a-way-of-life) sentiments among American Jews. Still, a kind commentator who is praising the Jewish commercial tradition might understandably downplay these anti-commerce forces, especially anti-commerce forces they find unworthy (because they're unduly anti-capitalistic).

So it's hard to see Thompson's comments as reflective either of actual anti-Semitism -- which is especially unlikely given that he was wooing a Jewish group -- or of the unreflective acceptance of pejorative or inaccurate anti-Semitic stereotypes. Thompson could have spoken more artfully, and he could have chosen to avoid this controversy by avoiding even accurate and friendly (but likely unnecessary) comments about Jews' respect for commerce. Perhaps he should have avoided the controversy, simply as a matter of sound politics. But I don't think it's sound to fault him for supposed prejudice, insensitivity, or even error in pointing out what many Jews are quite proud of.

News reports say that at least 29 people have been killed in a mass shooting at Virginia Tech, which - like George Mason - is a Virginia state university. Glenn Reynolds ("Instapundit") has a roundup with numerous links. As Glenn points out, Virginia Tech is, legally, a "gun free" zone. Defenders of gun rights will likely argue that the tragedy could have been prevented or at least reduced in scale if Tech students and faculty had been allowed to have their guns on campus and therefore been able to use them to stop the shooter. On the other hand, gun control advocates will probably claim that the shooter would hever have gotten his hands on a weapon in the first place if Virginia had tougher restrictions on gun ownership. No doubt, experts will weigh in on these issues in the coming days, including perhaps the VC's own gun experts David Kopel, Eugene Volokh, and Randy Barnett.

At this time, however, I just want to express our condolences to the students and faculty at Virginia Tech, who will have to live with the impact of these events for a long time to come. I also urge people not to try to derive any broader lessons from these events until we know a lot more about exactly what happened and why than we do now.

UPDATE: It is fairly obvious that most commenters have not heeded my admonition to avoid drawing policy conlusions until we know more about what happened. I'm not going to "punish" anyone by deleting their comments. But I will note that it's rarely a good idea to derive sweeping policy implications from very limited facts. For example, we don't yet know why the shooter did what he did, or how he acquired his gun. Furthermore, even if we did know more, it would be unwise to base gun control policy on a single case, even a highly publicized and tragic one. The case may be (and given the record death toll, probably is) highly unrepresentative. It is certainly not representative of general conditions on college campuses, which usually have quite low crime rates relative to other areas. As this Department of Education Report notes, in most years the total number of murders on all college campuses combined is about 10 to 20. The Virginia Tech incident represents more murders in a single day than typically happen on all college campuses combined over an entire year.

"An embarrassing new setback for embattled Attorney General Alberto Gonzales"?:
Alberto Gonzales's future is a hot news story right now, and finding a new angle on this story must be a big challenge for reporters. But this can also push reporters to get creative to find any angle they can, however weak. I think Adam Zagorin's story today in Time Magazine is a good example of such a weak story.

Zagorin's story covers the "American Freedom Agenda", a new group of conservatives that recently formed and has now called for the ouster of Alberto Gonzales. Zagorin writes:

In what could prove an embarrassing new setback for embattled Attorney General Alberto Gonzales on the eve of his testimony before the Senate Judiciary Committee, a group of influential conservatives and longtime Bush supporters has written a letter to the White House to call for his resignation. he two-page letter, written on stationery of the American Freedom Agenda, a recently formed body designed to promote conservative legal principles, is blunt. Addressed to both Bush and Gonzales, it goes well beyond the U.S. attorneys controversy and details other alleged failings by Gonzales. "Mr. Gonzales has presided over an unprecedented crippling of the Constitution's time-honored checks and balances," it declares. "He has brought rule of law into disrepute, and debased honesty as the coin of the realm." Alluding to ongoing scandal, it notes: "He has engendered the suspicion that partisan politics trumps evenhanded law enforcement in the Department of Justice."

Is this a big news story? It might sound like it at first. But the story hinges on Zagorin's claim that the members of the group are in fact "longtime Bush supporters." It seems that the group consists of five named members, so let's take a look at the list:

2) Former Representative Bob Barr, frequent Bush Administration critic who has been aruing that "Gonzales Should Go" for at least a month.

3) David Keene of the American Conservative Union, frequent opponent of the Administration on civil liberties issues, whose recent column "Send DOJ Bumblers Packing" began "The combination of arrogance and incompetence on display at the Department of Justice boggles the mind. The attorney general, his hapless but conniving deputy and everyone associated with the two of them ought to be sent packing . . . "

5) Former DOJ official Bruce Fein, a frequent Administration critic on surveillance and GWOT issues whose recent column began "Attorney General Alberto Gonzales should resign."

Is this really a list of "longtime Bush supporters" who have suddenly changed their mind on Gonzales, such that their joint announcement might be "an embarrassing new setback for embattled Attorney General Alberto Gonzales"? It doesn't look that way to me; it sounds like they are all critics of Bush and Gonzales who are mostly restating together what they have said individually. But you wouldn't know that from Zagorin's news story.

To be clear, I don't mean to suggest that these critics are wrong on the bottom line. I'm inclined to agree that Gonzales should resign, for reasons I plan to blog about soon. But this seems like a non-story to me.

Jules Crittenden has the latest excerpts from the North Korea News Agency site. Here are the first two paragraphs he excerpts:

Pyongyang, April 13 (KCNA) — Documentary film “Finding Himself among the People All His Life” was screened at the People’s Palace of Culture on the occasion of the 95th birth anniversary of President Kim Il Sung.
... The film deals in an extensive and deep-going manner with the immortal exploits the President ... It also tells legendary stories about the noble virtue and boundlessly modest and popular personality of the President who took deep care of the living of the people, once oppressed and humiliated, with warm love for them and shared joys and sorrows with them to bring happiness to them.

Pyongyang, April 13 (KCNA) — Rodong Sinmun Friday dedicates an article to the 33rd anniversary of the famous work of Kim Jong Il “Let Us More Firmly Establish Monolithic Ideological System in Whole Party and Society.” ...

In the last post, I explained two features of the theory: Why I concentrated on private firms and public-sector unions, and why I talked as if the private sector firms colluded with each other but didn't collude with the public sector (and to what extent this matters).

The previous posts have all elaborated on the simple model I put forth in the third post of this series. That model was characterized by a severe free-riding problem: The "dominant" actor (as defined in the fourth post — basically measured by that actor's proportion of total industry benefits) does all the industry-increasing lobbying, and the lesser actors free-ride off him. Because the public-sector union seems to be the dominant actor (I explained this in the fifth post), some amount of privatization — greater than zero, but not enough to change who's dominant — would always reduce industry-increasing lobbying, because the public sector would lobby less, while the private sector would continue to free-ride.

But there are more complicated possible models. In this post, I'll explain what happens when we relax various strong assumptions from the simple model. Sometimes, relaxing an assumption doesn't change the basic qualitative result. And sometimes, instead of unambiguously predicting that lobbying would fall, it predicts that the effect of privatization on lobbying is ambiguous — lobbying could go up or go down, depending on various empirical facts. Either way, this conflicts with the critics' view that privatization would affirmatively make lobbying worse.

First, I drop the assumption that money only buys victory for a given reform or candidate, and introduce the possibility that money can also change the substance of the reform or the candidate’s position. This does not significantly alter the conclusion. Second, I drop the assumption that anti-incarceration political advocacy is fixed. I find that the effect of privatization on anti-incarceration advocacy is ambiguous (though pro-incarceration advocacy still falls with privatization).

The third and fourth sections show how privatization may have an ambiguous effect even on pro-incarceration advocacy. In the third section, I relax the assumption that all money is fungible and that all that matters is the total amount of money in the pot. Once we allow public-sector money and private-sector money to have independent effects, privatization has an ambiguous effect on pro-incarceration advocacy: Private advocacy rises, but public advocacy falls. In the fourth section, I introduce the possibility that the pattern of privatization, as we observe it today, is already the result of a political process where strong unions have successfully opposed privatization while weak unions have not. I find that exogenously increasing privatization in such an environment would likewise have an ambiguous effect on pro-incarceration advocacy, as it depends on the correlation between actors’ influence in privatization politics and their influence in incarceration politics.

The bottom line is that, if one wants to argue that privatization will increase pro-incarceration advocacy, one must argue either, from outside the model, that the model is wrong, or, from inside the model, why privatization would increase private-sector advocacy more than it would decrease public-sector advocacy.

So far, I have taken the political agenda as given: I didn’t explain where the proposed reform came from. Thus, I’ve assumed that money is important because it buys victory—for instance, by persuading voters of the benefits of the policy or the merit of the candidate. But money can also affect the agenda—by changing candidates’ positions, by inducing the sponsors of voter initiatives to propose a different initiative, and so on.

When money can affect the agenda (but the other assumptions are unchanged), the analysis is essentially the same. Suppose you are considering whether to contribute to place an initiative on the ballot. The initiative is supported by some group or other, but for specificity, let’s say it’s being sponsored by a politician. This politician may be fairly pro-incarceration himself, but he’s limited in how strict an initiative he can propose: He won’t prevail unless the median voter, whose views control the outcome of the election, prefers his proposal over the status quo. However, before the substance of the initiative is set in stone, you can move him in a more pro-incarceration direction if—by offering him money to pay for persuasive advertising—you offer him the possibility to also move the median voter.

A monetary contribution has the following effects:

Electoral influence.

As before, you benefit because, by paying for persuasion, your contribution directly increases the probability that the initiative prevails.

But the contribution also moves the initiative in a more pro-incarceration direction, which cuts against the effect above.

Substantive influence. Finally, you benefit if the initiative prevails, because the policy is better for you than it would have been if you hadn’t contributed.

It turns out that this complication to the model doesn’t change the underlying result. As a prison provider thinking about how much to contribute, you follow the same framework as before: You contribute until the benefit of an extra dollar is worth $1 to you. The benefit of an extra dollar is more complicated than it was in the earlier model—in addition to encompassing the positive electoral influence effects, it now adds the negative electoral influence effect, as well as the benefit of substantive influence—but the basic idea is the same.

Now suppose, again, that the industry is split up into a 90% sector (you) and a 10% sector (them). As before, your benefits go down to 90% of their previous level, so you now want to contribute until the benefit of an extra dollar to the industry is worth $1.11. As before, you contribute less than before the split, because having only 90% of the industry is like facing a 10% tax on benefits. And as before, your competitor free-rides off you, because when he takes your contribution level into account, an extra dollar in the pot is no longer worthwhile to him.

* * *

Anti-Incarceration Advocacy.

This model focused only on the pro-incarceration side’s advocacy, taking the anti-incarceration side’s advocacy as given. But clearly anti-incarceration advocacy exists, and it is plausible that the pro- and anti-incarceration forces respond strategically to each other’s expenditures. This suggests two questions.

First, one might wonder whether the existence of anti-incarceration advocacy changes what we have already said about the effect of privatization on pro-incarceration advocacy. It turns out that it does not: Just as in the simple case, privatization makes pro-incarceration advocacy go down, even when we consider interactions with anti-incarceration advocacy.

Second, one might wonder how privatization changes anti-incarceration advocacy. After all, some anti-incarceration advocacy is as plausibly self-interested as the prison providers’ pro-incarceration advocacy. For instance, Proposition 66, which would have limited California’s Three Strikes Law, was partly funded by “Sacramento businessman Jerry Keenan whose son Richard is serving time for manslaughter after crashing his car while driving drunk and killing two passengers.” Proposition 36, the drug treatment diversion initiative, was supported by dozens of drug treatment providers and 16 medical and public health organizations, including the California Association of Alcoholism and Drug Abuse Counselors and the County Alcohol and Drug Program Administrators Association of California. And, as I showed above, state DOCs generally advocate against incarceration. If there exists all this self-interested anti-incarceration advocacy, perhaps those who are concerned about self-interest coloring people’s positions on criminal justice should be concerned about this as well.

It turns out that the privatization-induced decrease in pro-incarceration advocacy has an indirect effect on anti-incarceration advocacy. Unfortunately, we cannot say anything a priori about the direction of this effect. On the one hand, pro-incarceration advocacy decreases the effectiveness of anti-incarceration advocacy by counteracting it. So a decrease in pro-incarceration advocacy makes anti-incarceration advocacy more effective, which would tend to increase it. On the other hand, a decrease in pro-incarceration advocacy also makes anti-incarceration advocacy less necessary, which would tend to decrease it. There is no theoretical way to know how these conflicting effects would balance out; but in principle future research could answer the question empirically.

What this means normatively depends on one’s attitude toward anti-incarceration advocacy. If one opposes pro-incarceration advocacy because there’s already too much incarceration, then there’s nothing wrong, and perhaps everything right, with advocacy the other way.

On the other hand, if one opposes pro-incarceration advocacy because it is assumed to be self-interested, then perhaps anti-incarceration advocacy is just as bad if it comes from boot camps, halfway houses, drug treatment providers, and other presumptively self-interested parties. This model, which says nothing specific about total advocacy (either its amount or its effect), is thus normatively ambiguous.

* * *

Relaxing the Assumption of Fungible Money.

Recall the main model presented in the third post, in particular the last two pictures. A monopoly provider would have spent $1 million on advocacy, but under a 90–10 split, the 90% provider is unwilling to spend beyond the 900,000th dollar and the 10% provider is unwilling to spend beyond the 300,000th dollar; and so total advocacy falls to $900,000, with the dominant provider spending everything and the other one spending nothing.

The result that the smaller-share-of-total-benefit sector totally free-rides off the efforts of the dominant sector was driven by the assumption that the probability of getting the change in policy only depended on the total amount of money in the pot. All advocacy was fungible. A dollar from a public actor had the same effect as a dollar from a private firm. This is not an implausible assumption. For instance, dollars are fungible in buying advertising, which increases the probability of a change. A politician may adopt the view of whatever “policy position” contributed the most to his war chest.

On the other hand, some alternate assumptions may also be plausible. For example, one group might be attractive only to Democrats, while another might be attractive only to Republicans. More generally, perhaps politicians are just sensitive to the variety of voices in a coalition, feeling (rightly or wrongly) that having a wide variety of groups shows that a policy has wide support. Then neither group’s contributions totally “crowd out” the other’s. Your 500,001st dollar still has less benefit than your 500,000th dollar—there are still decreasing marginal returns—but (unlike in the previous model) it does not have the same benefit as your first dollar added on to your competitor’s 500,000th. Therefore, the total free-riding effect from the simple model above no longer occurs.

In this context, privatization has two effects. First, it increases the private-sector share, so private-sector advocacy goes up. Second, it decreases the share of the public sector, so public-sector advocacy goes down. We can’t say anything a priori about whether the first effect outweighs the second. If we know some facts about public- or private-sector advocacy—for instance, if one sector is completely unpersuasive, while the other sector is slick and sympathetic—then we can hazard some predictions, but we can’t say anything without such empirical facts. Because the empirical effect of privatization is ambiguous, the normative effect of privatization is also ambiguous if one opposes pro-incarceration advocacy. Unless we can be specific about how different groups’ advocacy has different effects and how effective the groups are, it is impossible to say whether prison privatization increases or decreases self-interested pro-incarceration advocacy.

* * *

Strong and Weak Unions and Industries.

Let us return to the point I made above that an industry’s effectiveness at advocacy is relevant to its “real” share for purposes of this analysis. For instance, if your competitor, with a 10% share, is twice as slick a lobbyist as you, meaning that his marginal dollars produce twice the benefit of yours, he will act as though his share is 20%.

Which way this cuts isn’t clear, as we don’t know which sector is more effective at lobbying in favor of incarceration. The CCPOA, as we’ve seen, is highly effective, but corrections officers’ unions are much less active outside of California, and perhaps this is because they are less effective. It’s hard to say how effective private prison firms would be at lobbying in favor of incarceration, since, as we’ve seen, there’s little evidence that they do this at all; and if they do it secretly, it’s likewise hard to gauge how effective they are.

But let us suppose that one’s effectiveness at lobbying for incarceration is correlated with one’s effectiveness at lobbying for (or against) privatization. For simplicity’s sake, let us suppose that they are perfectly correlated. Consider the states with high levels of privatization. We may conclude that those states have high privatization because their corrections officers’ unions were not effective at opposing privatization; the private industry was just too strong for them. When that relatively “weak” public sector was partly displaced by a relatively “strong” private sector, a weak pro-incarceration voice was similarly displaced by a strong pro-incarceration voice. Pro-incarceration advocacy, then, may plausibly have increased.

Similarly, consider the states with low levels of prison privatization, like California (1.8% private in 2004), or no privatization at all, like New York or Rhode Island. The unions in those states, on this view, must have been stronger than the industry, or else we would see privatization there now. If privatization were introduced, total advocacy would go down; but privatization is unlikely to be introduced there, so we won’t see that happen.

This is a story where—contrary to my implicit assumption so far—privatization is endogenous: The states where privatization has gained a foothold aren’t randomly chosen; rather, privatization emerges where corrections officers’ unions are weak and fails to emerge where the unions are strong. Thus, past privatization may have, on balance, increased pro-incarceration advocacy. If one could somehow eliminate prison privatization (despite the confluence of powerful political forces that established it to begin with), one would reestablish the rule of the ineffective corrections officers’ unions in those states where they were ineffective—to the benefit of those who oppose pro-incarceration advocacy. By a similar logic, one should introduce privatization where it is currently absent: If it is currently absent, it is because it wasn’t a powerful enough political force to win on its own, which means it will also be an ineffective political force in fighting for incarceration.

In fact, the assumption here—that the effectiveness of pro-incarceration advocacy is perfectly correlated with the effectiveness of pro- or anti-privatization advocacy—implies that pro-incarceration advocacy is already as high as it can get, because the slick advocates, who were already slick enough to establish themselves in the industry, are now plying their slickness in the incarceration policy field. Adding a thumb to the privatization scales in either direction would tend to support the victory of the less persuasive party and would therefore reduce the total amount of pro-incarceration advocacy.

This story may be plausible, but it requires more fleshing out. For one thing, the assumption may not be right. Low-privatization states need not be high-union-strength states. While antipathy to privatization and the strength of public-sector unions are probably correlated, a very Democratic state may plausibly oppose privatization even if, for whatever reason, its unions are weak. Actors in the prison industry may not be similarly effective in the privatization debate as in the incarceration debate.

While one’s effectiveness at advocacy probably depends on one’s general characteristics, like goodwill, persuasiveness, and slickness, the specific subject matter of the advocacy the correlation also plays a big role. The incarceration debate is peopled by different interest groups than the privatization debate. For instance, prosecutors, police officers, victims’ rights groups, and rural communities are interested in incarceration policy but not so much in privatization policy. Conversely, prison privatization is a matter of interest even to interest groups without a direct interest in prisons, like, on one side, generalized public employee unions, and, on the other side, small-government advocates, who assume (probably sensibly enough) that a victory for privatization in any field is a victory for the general privatization movement. Moreover, the appeal of incarceration arguments, which connect to fears of drugs and crime and concerns over civil liberties, seems to have a very different source than the appeal of privatization arguments, which relate to taxes, spending, and the effectiveness of government services.

We are back, then, to a general state-by-state analysis. In the first set of models—where the effectiveness of advocacy only depended on the total amount of money in the pot—everything was driven by the dominant actor, where “dominant” also takes effectiveness into account. I have given arguments above as to why the private sector is currently probably the smaller actor. The “slickness adjustment” described here might change that in some places, but it is an empirical question. As is by now familiar, privatization still increases the private-sector share but decreases the public-sector share. This “slickness adjustment” may change the de facto shares of the different sectors, but it doesn’t change the qualitative result. The effect of privatization is theoretically ambiguous.

There is no doubt that prejudice against interracial dating has declined over the last several decades, and that the practice has become far more common than it once was. At the same time, as New York Times columnist John Tierney points out in this recent post, a high proportion of the population still has strong preferences for dating people of the same race. Tierney summarizes several recent studies that summarize this perhaps unsurprising finding. One of the most interesting studies quoted by Tierney is this recent analysis of preferences in online dating, which concludes that the same-race preference may be extremely strong:

For equal success with an African-American woman [relative to an African-American man], a Hispanic man needs to earn an extra $184,000 [in annual income]; a white man needs to earn an additional $220,000.

For equal success with a white woman [relative to a white man], an African-American needs to earn an additional $154,000; a Hispanic man needs $77,000; an Asian needs $247,000.

For equal success with a Hispanic woman [relative to a Hispanic man], an African-American man needs to earn an additional $30,000; a white man needs to earn an additional $59,000.

For equal success with an Asian woman [relative to an Asian man], an African-American needs no additional income; a white man needs $24,000 less than average; a Hispanic man needs $28,000 more than average.

The research is extremely interesting (even if somewhat depressing). But there are two potentially important omitted factors that I think should be included. The first is the subject's racial group's percentage of the local population where he or she resides. If the person in question lives in an area where her group makes up 80 or 90 percent of the population, she loses very little by choosing to avoid interracial dating. She still has 80 or 90% of the relevant "market" to choose from. By contrast, if her group is a tiny minority, she is passing up far more potential dating opportunities. This may partially explain why whites and blacks are, on average, more reluctant to engage in interracial dating than members of other ethnic and racial groups, particularly Asian-Americans. Whites and blacks are more likely than Asians and Hispanics to live in areas where their group is either in the majority or at least a very large minority - although we should not forget the greater historical prejudice against African-Americans as well.

The second important omitted variable is the strength of the subject's other preferences in a mate, besides race. The higher your standards for beauty, intelligence, income, social skills, and so forth, the less you can afford to also cut out a large percentage of the dating pool by foregoing interracial dating. The same is true if your standards are hard to meet because they are simply unusual rather than high (e.g. - if you insist that your romantic partner have exactly the same religious or political beliefs, even if the beliefs you hold are uncommon). By contrast, if your other standards are relatively easy to meet, you can probably find a romantic partner even if you are unwilling to date outside your racial group, and you therefore have less incentive to compromise on your racial preferences.

If I am right, then people are more likely to be receptive to interracial dating if they 1) live in an area where their group is a small minority, and 2) have hard to satisfy nonracial standards for their significant other.

UPDATE: A number of commenters note that I may be "ignoring" various other relevant variables such as cultural differences between groups. I did not claim in the post to have identified every relevant variable. I merely noted two that may be very important, but have been neglected in the studies. I also did not claim that ALL reluctance to engage in interracial dating is the result of "prejudice." However, some significant part of it probably is. Cultural differences alone cannot account for the fact that there is much greater reluctance to engage in interracial dating with blacks than with other groups despite the fact that cultural differences between blacks and whites are, on average, probably smaller than those between native-born whites and recent Hispanic or Asian-American immigrants.

Sunday, April 15, 2007

Allen Asch has the goods, in a video of his own. The transcript of the obituary is pretty telling:

The influential American author, Kurt Vonnegut has died at 84 after suffering brain injuries in a recent fall in his Manhattan home. Some of Vonnegut's books had, at times, been burned or banned. Correspondent James Rosen looks at Vonnegut's life and the impact of his work on the culture 20th century America.

(BEGIN VIDEOTAPE)

KURT VONNEGUT, AMERICAN AUTHOR: I never thought I'd amount to a hill of beans.

JAMES ROSEN, FOX NEWS CORRESPONDENT (voice-over): Kurt Vonnegut probably wouldn't have wanted a classically structured obituary. His life's work, 14 novels, short stories, plays, essays, left-wing screed and random musings, was much too quirky, too filled with scatological humor, cosmic coincidences, and self-admitted sci-fi mumbo-jumbo for him to have enjoyed stately induction into the great pantheon of American writers. So here's the Cliffs Notes version.

VONNEGUT: I was born in 1922.

ROSEN: And he joined the Army in World War II. Taken prisoner in Germany, Vonnegut survived by pure chance the kind of indiscriminate stroke of fate he later made a career out of conjuring [--] the fire bombing of Dresden by allied planes, a hell-on-earth experience that flattened a city and killed 25,000 people. The horror of the war never left Vonnegut. It figured prominently in his books, most famously Slaughter House Five, which, like other of his works, made it to the big screen.

UNIDENTIFIED MALE: He drew explicit parallels between his experience in World War II, witnessing the destruction of the German city of Dresden by allied forces and the American involvement in Vietnam, and that's one of the reasons why it was so popular and it's also one of the reasons why it was a very, very radical book in it's time.

ROSEN: Vonnegut thought Richard Nixon was not evil, just mean. And that Ronald Reagan was old-fashioned, ignorant, prudential, and dangerous. Such views make Vonnegut a counter-cultural icon and ultimately propelled the author himself to the big screen.

VONNEGUT: Hi, I'm Kurt Vonnegut.

ROSEN: His early work in science fiction brought little acclaim until the publication in 1963 of Cat's Cradle a story of earth's direction that became a cult classic. By the late '70s Vonnegut was rich and irrelevant. The subject of other people's books, a sacred cow of the New York literary scene. He once said any New Yorker you've met once you get to call your friend. He then listed his New York friends and asked if anyone wanted an introduction.

VONNEGUT: American male writers have done their best work by the time they are 55 and then it's pretty junky after that...

ROSEN: But Vonnegut kept at it and persisted in his unique brand of despondent leftism.

VONNEGUT: The bad news is the that the Martians have landed in New York City and have checked in at the Waldorf. The good news is that they only eat homeless men, women and children of all colors and they pee gasoline.

(LAUGHTER)

ROSEN: Vonnegut, who failed at suicide 23 years ago, said 34 years ago that he hoped his children wouldn't say of him when he was gone "he made wonderful jokes, but he was such an unhappy man." So I'll say it for them.

Kurt Vonnegut was 84.

In Washington, James Rosen, FOX NEWS.

(END VIDEOTAPE)

It may well be that Kurt Vonnegut would not have wanted a "classically structured obituary," but I doubt he wanted this. And regardless of what he wanted, can't we save the correspondent's derogatory literary and personal opinions -- "rich and irrelevant," "sacred cow," "such an unhappy man," "mumbo-jumbo" (whether self-admitted or not), and even the largely irrelevant and needlessly harshly framed facts of the "failed at suicide" variety -- for some other context?

I don't want to make a fetish out of "never speak ill of the dead." If someone is famous for genuinely evil things, it's hard to have a sensible obituary without mentioning them. If someone is famous for good or neutral things, but has nonetheless done something genuinely evil, one might feel some obligation to bear witness to the evil even in the obituary. I disapproved of Alan Dershowitz's condemnation of Chief Justice Rehnquist the day after he died, but at least those who had a very negative view of what Rehnquist did (as opposed to just the literary quality of what he wrote) could generally believe that the condemnation was necessary under the rubric I have just described.

But there seems no such justification when the dead person's chief sins are that he wrote novels that a journalist dislikes, or that he had more glory than the journalist deserves, or that he had a personal temperament that the journalist thinks pitiful. There is no misbehavior here that triggers any obligation of continued moral condemnation, no harsh but essential facts that require a newsman's regretful candor.

All that we have here is the ultimate defeat of death for the man, sad to contemplate even though (or perhaps precisely because) the same defeat will come for us all; the tragedy for his family and close friends; and the sadness for those who liked and respected him (in his case, rightly or wrongly, very many people). Our cultural tradition of a respectful suspension of criticism is a worthy attempt to acknowledge all this, and to restrain us from making a sad occasion more painful. It's too bad that Fox News has departed from this tradition here.

AG's Written Testimony:TPMMuckraker has posted Albert Gonzales's written testimony for Tuesday's hearing about the U.S. Attorney firings. The gist of the testimony: Gonzales was basically out of the loop on who would be fired and why. Gonzales told Sampson to make up a list, and Gonzales approved Sampson's list a year or two later without asking about or getting into the details.

Miles Davis Quintet Plays "Joshua":
The Miles Davis Quintet of 1964-1968 is justly celebrated as one of the most important jazz groups of all time. Miles picked four of the most extraordinary young musicians playing at the time — Wayne Shorter on tenor sax, Herbie Hancock on piano, Ron Carter on bass, and Tony Williams on drums — and they created a new sound that remains tremendously influential today.

Here's an excellent clip from YouTube of an early performance of the quintet performing "Joshua" on tour in Italy in October 1964. Shorter had joined the group only a month earlier, replacing Sam Rivers, who had a few months earlier replaced George Coleman (you can hear the difference by comparing the string of live albums recorded in 1964: My Funny Valentine in February with Coleman, Miles in Tokyo in July with Rivers, and Miles in Berlin in September with Shorter). It's also interesting to note that the drummer, Tony Williams, was all of 18 years old at the time.

If you're interested in hearing more, I would probably start with the Quintet's first studio album, E.S.P., and then turn to Sorcerer. At that point I might switch over to a Shorter-led Blue Note, such as Speak No Evil, which has Freddie Hubbard instead of Miles and Elvin Jones instead of Tony Williams but is a terrific album that really shouldn't be missed.

Gonzales Defends U.S. Attorney Firings:
In today's Washington Post, Attorney General Alberto Gonzales gives us a preview of his Tuesday Senate testimony defending his role in the U.S. Attorney firings.

Gonzales writes that the firings resulted from "a well-intentioned management effort to identify where, among the 93 U.S. attorneys, changes in leadership might benefit the department, and therefore the American people." He also states: "I know that I did not -- and would not -- ask for the resignation of any U.S. attorney for an improper reason. Furthermore, I have no basis to believe that anyone involved in this process sought the removal of a U.S. attorney for an improper reason."

Notably, however, Gonzales does not explain in the op-ed what he considers an improper reason to fire a U.S. Attorney. He also does not explain why he thought these changes in leadership might benefit the American people. Stay tuned . . .

The Legal Times features a Tony Mauro interview with former DoJ attorney Daniel Metcalfe, a 30-year veteran of the Department who most recently headed the Office of Information and Privacy. Metcalfe has served under a dozen Attorney's General, and claims that in terms of "politicization" of the department, "nothing compares to the past two years under Alberto Gonzales."

To be sure, he continued a trend of career/noncareer separation that began under John Ashcroft, yet even Ashcroft brought in political aides who in large measure were experienced in government functioning. Ashcroft's Justice Department appointees, with few exceptions, were not the type of people who caused you to wonder what they were doing there. They might not have been firm believers in the importance of government, but generally speaking, there was a very respectable level of competence (in some instances even exceptionally so) and a relatively strong dedication to quality government, as far as I could see.

Under Gonzales, though, almost immediately from the time of his arrival in February 2005, this changed quite noticeably. First, there was extraordinary turnover in the political ranks, including the majority of even Justice's highest-level appointees. It was reminiscent of the turnover from the second Reagan administration to the first Bush administration in 1989, only more so. Second, the atmosphere was palpably different, in ways both large and small. One need not have had to be terribly sophisticated to notice that when Deputy Attorney General Jim Comey left the department in August 2005 his departure was quite abrupt, and that his large farewell party was attended by neither Gonzales nor (as best as could be seen) anyone else on the AG's personal staff.

Metcalfe blames some of the problems at DoJ are due to "second-term drop off" in the caliber and experience of political appointees — a phenomenon he claims is more severe in Republican administrations — but he clearly places ultimate responsibility on the Attorney General and the culture he has helped create.

Metcalfe calls himself "a purposely nonpartisan registered independent," but his political sympathies are clear. I think it would be a mistake to discount his remarks on this basis, however. Even if [one believes that] he grossly overstates the case, his account should give even the most rock-ribbed Republican cause for concern.

Today is my last day as a guest blogger, and I wanted to start by thanking my hosts and also you, the VC reader. This is an amazing place to workshop a paper having to do with computer security.

Last Monday, immediately after posting for the first time to the VC, I decided to conduct a little experiment. I wrote a quick computer program (for the more technically minded, a perl script and a cronjob) which downloaded and saved the SSRN statistics relating to my Superuser and Analog Hole papers every fifteen minutes, for the entire week.

I started picking through the data Friday afternoon, and as I am too often wont to do, I took a fun little exercise a bit too far and turned it into a 22 page article you can download, naturally, from SSRN.

I'll summarize some of the high points below, but I hope you read the paper. It's a quick 22 pages, complete with 10 charts and 7 tables.

The best way to summarize the study is to show two (admittedly overly busy) charts. Click a chart to enlarge:

Here are some observations from the paper about the effects of blogging on SSRN statistics:

Blogging about an article at the Volokh Conspiracy appears to be a good way to increase SSRN "Abstract Views" and "Downloads"

Interesting comparisons can be made between the SSRN habits of Slashdot readers and Volokh Conspiracy Readers.

The ratio of Downloads to Abstract Views (which I call, Abstract Click-through Rate or ACTR) is a very interesting number which deserves much more scrutiny.

VC readers tended to cause the ACTR for my articles to plummet. In other words, VC readers tended to visit my abstracts without downloading the articles more often than the people who had visited my abstracts prior to this week. I'd love to hear your theories about why this may be.

If you stare hard enough at the trends in these graphs, you can begin to make out the effects of people waking up, getting to work, and leaving work. Based on my data, I'm willing to bet that a lot of people read the VC and download from SSRN while at work.